Easements Flashcards
What is an Easement?
- 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”).
When will an Easement qualify as a legal interest?
It spans the same Duration as the ST’s Estate.
LPA 1925 — s. 1(2)(a).
Failing this requirement automatically makes an Easement equitable.
What is the distinction between Positive and Negative Easements?
Positive Easements:
- The Grantee can use the ST in a specific way.
Negative Easement:
- The Grantor cannot use the ST in a specific way if it prevents the Grantee from doing or receiving something.
What are the only recognised Negative Easements?
Those concerning Air, Light, and the Structural Integrity of Fixtures.
What is a Quasi-Easement?
A Quasi-Easement is an Easement that would exist if a consolidated Tenement was divided between two Owners.
How is an Easement distinct from a Public Right?
Easements are exercised by specific individuals or bodies, whereas Public Rights are exercised generally.
How is an Easement distinct from a Profit à Prendre?
An Easement does not confer upon the Grantee the right to take anything from the ST, e.g. produce.
How is an Easement distinct from a Restrictive Covenant?
- 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.
What is a Grant?
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.
What is a Reservation?
The retention of an Easement by the Seller or Landlord following a Sale or Lease during Conveyancing.
Cordell v Second Clanfield [1969] 2 Ch 9.
How can an Easement be created?
Supposing it satisfies the Capability Test and is not disqualified, an Easement may be created:
- Impliedly;
- Expressly; or
- By Prescription.
What is the Capability Requirement for Easements?
The given right must be capable in principle of becoming an Easement.
Re Ellenborough Park [1956] Ch 131.
In Principle, what are the Characteristics of an Easement?
- There must be a Dominant and Servient Tenement.
- The right must accommodate the Dominant Tenement, not necessarily the Grantee.
- The Tenements cannot be commonly owned.
- The right must be capable of forming the subject of a Deed.
Re Ellenborough Park [1956] Ch 131.
What are the Disqualifying Factors for Easements?
- Use which amounts to exclusive possession.
- Additional unavoidable expenditure by the Grantor.
- Dependence upon the Grantor’s permission following the benefit’s initial granting.
What are the Two Tests to determine whether an Easement amounts to Exclusive Possession?
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]
What Methods are used to Imply an Easement?
- Necessity.
- Common Intention.
- §62 of LPA 1925.
- The Rule in Wheeldon v Burrows.
§62 is often expressly excluded in Deeds, so do not mind it.
When will an Easement be Implied by Necessity?
When its existence is absolutely essential for any use of the DT to be made.
Pryce v McGuinness [1966] Qd R 591
When will an Easement be Implied by Common Intention?
- 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.
When will an Easement be Implied be the Rule in Wheeldon v Burrows?
When there exists:
- Continuous, apparent, 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.
How may an Easement arise by Perscription?
- 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.
Is an Express Legal Easement enforceable against a New Owner of Unregistered Land?
Yes, and it becomes an Overriding Interest upon first registration.
Mercer v Liverpool [1903].
The same is true of an Implied Easement.
Is an Implied Legal Easement enforceable against a New Owner of Registered Land?
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.
Is an Express Equitable Easement enforceable against a New Owner of Registered Land?
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.
Is an Express Equitable Easement enforceable against a New Owner of Unregistered Land?
Yes, but only if protected by a Class D(iii) Land Charge on the Register of Charges.
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.
