Easements Flashcards
What is a positive easement?
Allows holder to use the servient land of another in a particular way.
Two types:
1. Grant
2. Reservation
What is a legal easement?
One that is created for a certain duration of time - i.e., permanent for freeholder or duration of lease for leaseholder
What is a negative easement?
ONLY four recognised categories:
1. Air
2. Light - through a defined aperture
3. A right to support
4. A right to waterflow
What is an equitable easement?
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
Formalities for an estate contract
- Must be in writing
- Must be signed by both parties
- Must contain all agreed terms
Formalities for an equitable easement
- Must be in writing
- Must be signed by the grantor
NO need to be be registered
What is an implied legal easement?
Overriding interests - not binding on everyone
Test to recognise a legal easement (express or implied)
- Set duration of time
- Must be capable of being an easement
- No disqualifying factor applies
- Right must be acquired as an easement
What is capable of being an easement?
- There must be two lands
- The right must accommodate the dominant tenement
a. Must have direct beneficial impact on the land
b. Must be sufficiently proximate - Diversity of ownership
- 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
Disqualifying factors
- If D has exclusive possession of the land – if S has no ‘reasonable use of the land’ anymore.
- If S faces additional unavoidable expenditure
- Right must not require permission from S
Methods of implying an easement
- Necessity
- Common Intention
- Wheeldon v Burrows
- S. 62 LPA
Implied acquisition through necessity
Strict test.
Only applies to landlocked land.
Implied acquisition through common intention
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
Implied acquisition through Wheeldon v Burrows
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.
Implied acquisition of s.62 LPA
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)
Transfer of benefit and burden of easement
Benefit always passes
Burden only passes if
- legal easement if disponee has notice
- equitable easement to a disponee for value (if registered)
Enforceability of Express legal easement
Enforceable in both registered and unregistered land.
Enforceability of Implied legal easement
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.
Equitable easements
