Easements Flashcards
what is an easement?
proprietary right to use land which belongs to someone else.
what is dominant tenement and servient tenement?
Person who recieves the benefit of the easement is the grantee and their land is the dominant tenement.
Person who grants the easement land is the grantor and their land that is burdened by the easement is the servient tenement.
equitable vs legal easement?
- can be a legal interests if it fulfils the requirements as to duration (forever or for a set period of time).
- can be equitable if it is not granted for the equivalent of a freehold or leasehold estate.
what are the three examples of negative easements?
Right to light, right to air, right of support.
most easements are positive however.
BUT THERE IS NO GENERAL RIGHT TO LIGHT.
what are grants and reservations?
- grant exists where A, a landownwe, sells or leases part of A’s land to B, and gives to B an easement over the land which A has retained.
- a reservation exists where A sells or leases part of A’s land to B, and retains a right over the land sold or leases to B.
how can an easement be created?
expressly in deed, impliedly, or through prescription (exercised for at least 20 years- these will be legal).
what is the basic criteria for prescription and legal easements?
- continuous user.
- as a right- used without force.
and exercised ‘nec vi, nec clam, nec precario’ (without secrecy and without permission)
what are the three requirements for an easement?
- must be capable in principle of being an easement.
- the right must not be prevented from being an easement by the presence of one of the disqualifying factors.
- the right must have been acquired as an easement (expressly, impliedly or prescription)
how can easements be capable in principle of being an easement? 4 characteristics
- there must be a dominant and servient tenement,
- the right must accomodate the dominant tenement (must benefit it, add value to it, not just benefit a business and be sufficiently proximate to it).
- there must be diversity of ownership (must be owned by tqo different people).
- the right must lie in grant.
what are the disqualifying factors?
- exercise of the right must not amount to exclusive possession of the servient tenement.
- the exercise of the right by the dominant owners must not involve additional, unavoidable expenditure by the servient owner.
- the exercise of the right must not depend on permission being gives by the servient owner (when the right is first used express permission will be given, after this!).
what are the two tests for exclusive possession and easements?
- ouster principle- binding law- left with no reasonable use of the land.
- possession and control test.
who must carry out repairs?
a servient tenement owner is not obliged to carry out repairs or maintenance to enable the dominant owner to enjoy an easement. Instead, they must allow the dominant owner onto the servient land to carry out any repairs at the dominant owner’s expense:
what are the formalities for express legal easements?
created by a deed.
deed must be in writing/dated, signed by grantor and witness, must be intended to be a deed.
failed legal easements may be equitable?
can become an estate contract- made in wiritng, signed and include all agreed terms.
what are the formalities to create an easement for an uncertain term?
created in writing and signed.
what are the 4 methods of implied acquisition?
- necessity- essential in order that any use of the dominant tenement can be made. e.g right of way for landlocked land.
- common intention of the parties- land has been sold for a particular purpose and cannot be fulfilled without an easement sought (reserved and grant)
- rule in wheeldon v burrows (just grant)
- LPA 1925, s62- grant
what is the rule in Wheeldon v Burrows?
where an owner of a plot of land sells or leases some of their land to an owner or tenant. new owner for teneant will impliedly acquire as easements all those rights which A had previosuly exercised over the land it retains for the benefit of the land it has just sold/leased to the new owner/tenant.
wheeldon v burrows requirements:
- grant.
- quasi easement by the seller or landlord.
- easement must have been continuous and apparent.
- necessary for reasonable enjoyment of the land.
- must be in use by the common owner at the date of the transfer.
implied by LPA 1925, s62?
- only imply as easement into a conveyance = deed.
- ensures that when someone buys freehold land or leases land, the buyer or tenant will receive the benefit of all existing easements which affect the land.
two situations
1. where land has been divided before informal permission is given and permission becomes an easement when re let or sold or
2. where the land is divided for the very first time by lease or sale of part, right is continous and apparent.
LPA 1925- requirement for upgrade effect?
- grant.
prior diversity of occupation of the dominant and serivent land. - informal permission or licence must have been granted to the occupier of domiant tenement to use the servient land in some way.
- must have been a conveyance of the domiant tenement.
how can the dominant owner enforce the easement>
- must have the benefit of the easement and be able to sue.
- benefit always passes with dominant land when transferred.
- easement will iether be registered on property register or for registered land or charges register for unregistered land.
implied legal easements and enforceability against servient owner?
will be an overriding interest on registered land if
- the easement is within actual knowledge of the new owner.
it is obvious on a reasoanbly careful inspection of the servient land.
- it has been exercised a year before the transfer of the seriveint land/
for unregistered- overridng interest.
remedies for breach?
- mandatory injuction to remove obstruction.
- prohibitory injuction to prevent interference with the enjoyment,
- damages in lieu of injuction or in addition to it.
express legal easements and enforcability against servient owner?
registered land- substantively registered.
unregistered- legal interest binds the world- overriding interest.
