Easements

Question 1

What is an Easement?

Answer 1

A proprietary right to use land that belongs to another, although less than an exclusive right to occupy or use would allow.

The person benefitting from the Easement is called the Grantee, and their land is called the Dominant Tenement (“DT”).

The person who grants the Easement is called the Grantor and their land is called the Servient Tenement (“ST”).

Question 2

When will an Easement qualify as a legal interest?

Answer 2

When it fulfills the requirement as to duration, i.e. it spans the same duration as the given estate.

LPA 1925 — s. 1(2)(a).

Failing this requirement automatically makes an Easement equitable.

Question 3

What is the distinction between Positive and Negative Easements?

Answer 3

• Positive Easements allow the Grantee to use the ST in a particular way.
• Negative Easements prevent the Grantor from using the ST in a particular way if it prevents the Grantee from receiving something.

Question 4

What are the only recognised Negative Easements?

Answer 4

Those concerning light, air, and the structural integrity of a fixture.

Question 5

How is an Easement distinct from a Quasi-Easement?

Answer 5

A Quasi-Easement is an Easement that would exist if a consolidated Tenement was divided between two owners.

Question 6

How is an Easement distinct from a Public Right?

Answer 6

Easements are exercised by specific individuals or bodies, whereas Public Rights are exercised generally.

Question 7

How is an Easement distinct from a Profit a Prendre?

Answer 7

An Easement does not confer upon the Grantee the right to take anything from the ST, e.g. produce.

Question 8

How is an Easement distinct from a Restrictive Covenant?

Answer 8

An Easement’s primary purpose is to grant a right over the ST, whereas a Restrictive Covenenat’s primary purpose is to restrict what may be done with or on the ST.

Question 9

What is a Grant?

Answer 9

The creation of an Easement by a Seller or Landlord in favour of a Buyer or Tenant during conveyancing.

Cordell v Second Clanfield [1969] 2 Ch 9.

Question 10

What is a Reservation?

Answer 10

The retention of an Easement by Seller or a Landlord following a sale or lease during conveyancing.

Cordell v Second Clanfield [1969] 2 Ch 9.

Question 11

How can an Easement be created?

Answer 11

Supposing it satisfies the Capability Test and is not disqualified, an Easement may be created:
* Impliedly;
* Expressly; or
* By prescription.

Question 12

What is the Capability Requirement for Easements?

Answer 12

The given right must be capable in principle of becoming an Easement.

Re Ellenborough Park [1956] Ch 131.

Question 13

In Principle, what are the Characteristics of an Easement?

Answer 13

1. There must be a Dominant and Servient Tenement.
2. The right must accommodate the Dominant Tenement, not necessarily the Grantee.
3. The Tenements cannot be commonly owned.
4. The right must be capable of forming the subject of a Deed.

Re Ellenborough Park [1956] Ch 131.

Question 14

What are the Disqualifying Factors for Easements?

Answer 14

• Use which amounts to exclusive possession.
• Additional unavoidable expenditure by the Grantor.
• Dependence upon the Grantor’s permission following the benefit’s initial granting.

Question 15

What are the Two Tests to determine whether an Easement amounts to Exclusive Possession?

Answer 15

• Ouster Test: Is the Grantor left with reasonable use of the ST, or have they been ousted?
• Possession and Control Test: Does the Grantor retain ultimate possession and control of the ST, subject to the reasonable exercise of the right?

Batchelor v Marlow [2003] |Moncrieff v Jamieson [2007]

Question 16

What Methods are used to Imply an Easement?

Answer 16

• Necessity.
• Common intention.
• Section 62 of LPA 1925.
• The Rule in Wheeldon v Burrows.

Section 62 is often expressly excluded in Deeds, so do not mind it.

Question 17

When will an Easement by Implied by Necessity?

Answer 17

When its existence is absolutely essential for any use of the DT to be made.

Pryce v McGuinness [1966] Qd R 591

Question 18

When will an Easement by Implied by Common Intention?

Answer 18

When its existence gives effect to the parties’ common intention, namely a definite and particular use of the property for which it is necessary.

Wong v Beaumont Property Trust [1965] 1 QB 173.

Question 19

When will an Easement by Implied by the Rule in Wheeldon v Burrows?

Answer 19

When there exists:
* Continuous, apparaent, and reasonably necessary Quasi-Easements;
* On commonly owned and occupied land;
* Immediately prior to its sale or transfer.

Consequently, this only works with Grants, not Reservations.

Question 20

How may an Easement arise by Perscription?

Answer 20

The relevant person has exercised a particular right without force, secrecy, or permission for at least 20 years without interruption, i.e. a one-year break.

Perscription Act 1832.

This can only arise between two Freeholders. Easements acquired by Perscription are Legal Easements.

Question 21

Is an Express Legal Easement enforceable against a New Owner of Unregistered Land?

Answer 21

Yes, and it becomes an Overriding Interest upon first registration.

Mercer v Liverpool [1903].

The same is true of an Implied Easement.

Question 22

Is an Implied Legal Easement enforceable against a New Owner of Registered Land?

Answer 22

Yes, but only if:
* It is within the actual knowledge of the new owner; or
* it is obvious on a reasonably careful inspection of the ST; or
* It has been exercised within the year prior to the transfer of the ST.

LRA 2002 — Sch. 3, Para. 3.

Question 23

Is an Express Equitable Easement enforceable against a New Owner of Registered Land?

Answer 23

Yes, but only if protected by a Notice on the Charges Register.

LRA 2002 — s. 32, 29(2).

The same is true of Implied Equitable Easements.

Someone who is gifted or inherets the Land, i.e. a volunteer, will always be bound.

Question 24

Is an Express Legal Easement enforceable against a New Owner of Unregistered Land?

Answer 24

Yes, but only if protected by a Class D(iii) Land Charge on the Charges Register.

LCA 1972 — s. 2(5)(iii).

The same is true of Implied Equitable Easements.

Someone who is gifted or inherets the Land, i.e. a volunteer, will always be bound.