Easements

Question 1

What is a positive easement?

Answer 1

Allows holder to use the servient land of another in a particular way.

Two types:
1. Grant
2. Reservation

Question 2

What is a legal easement?

Answer 2

One that is created for a certain duration of time - i.e., permanent for freeholder or duration of lease for leaseholder

Question 2

What is a negative easement?

Answer 2

ONLY four recognised categories:
1. Air
2. Light - through a defined aperture
3. A right to support
4. A right to waterflow

Question 3

What is an equitable easement?

Answer 3

It is an easement that is granted for an uncertain term OR a failed legal easement in that it was not registered properly OR an estate contract

Question 4

Formalities for an estate contract

Answer 4

1. Must be in writing
2. Must be signed by both parties
3. Must contain all agreed terms

Question 5

Formalities for an equitable easement

Answer 5

1. Must be in writing
2. Must be signed by the grantor

NO need to be be registered

Question 6

What is an implied legal easement?

Answer 6

Overriding interests - not binding on everyone

Question 7

Test to recognise a legal easement (express or implied)

Answer 7

1. Set duration of time
2. Must be capable of being an easement
3. No disqualifying factor applies
4. Right must be acquired as an easement

Question 8

What is capable of being an easement?

Answer 8

1. There must be two lands
2. The right must accommodate the dominant tenement
   a. Must have direct beneficial impact on the land
   b. Must be sufficiently proximate
3. Diversity of ownership
4. Right must lie in grant
   a. Grantor and grantee must be capable
   b. Must be a judicially recognised right
   c. Nature and extent of the right must be clear enough

Question 9

Disqualifying factors

Answer 9

1. If D has exclusive possession of the land – if S has no ‘reasonable use of the land’ anymore.
2. If S faces additional unavoidable expenditure
3. Right must not require permission from S

Question 10

Methods of implying an easement

Answer 10

1. Necessity
2. Common Intention
3. Wheeldon v Burrows
4. S. 62 LPA

Question 11

Implied acquisition through necessity

Answer 11

Strict test.

Only applies to landlocked land.

Question 12

Implied acquisition through common intention

Answer 12

If land was sold for a particular purpose AND purpose cannot be fulfilled without implied the easement.

E.g., right of drainage.

Easement must be necessary to achieve the common purpose

Question 13

Implied acquisition through Wheeldon v Burrows

Answer 13

ONLY APPLIES TO GRANTS.

Scope – Where land was owned by one person, and then split into two.

Elements
1. Right must have been enjoyed as a quasi-easement
2. Quasi-easement was continuous and apparent (noticeable on inspection)
3. Quasi-easement must be necessary for the reasonable enjoyment of land.

Rule can be expressly excluded.

Question 14

Implied acquisition of s.62 LPA

Answer 14

ONLY APPLIES TO GRANT.

Scope – applies where there was informal permission/licence to some benefit.

The Act upgrades the licence into an easement when there is a conveyance (deed or legal lease)

Question 15

Transfer of benefit and burden of easement

Answer 15

Benefit always passes
Burden only passes if
- legal easement if disponee has notice
- equitable easement to a disponee for value (if registered)

Question 16

Enforceability of Express legal easement

Answer 16

Enforceable in both registered and unregistered land.

Question 17

Enforceability of Implied legal easement

Answer 17

Enforceable in unregistered land.
Enforceable in registered land if easement can be ascertained on actual or constructive knowledge or the easement has been used in the year prior to sale.

Question 18

Equitable easements