Easements Flashcards
What are the requirements for an easement to exist?
Re Ellenborough Park
1. Dominant and servient tenement
2. Each must be in separate occupation
3. Easement must accommodate the servient tenement
4. The right must be capable of forming the subject matter of a grant
What does it mean for an easement to ‘accommodate’ the servient tenement?
The right must benefit the land, must give some benefit to the owner of the land for the time being that they own it rather than a personal advantage
What was the decision in Regency Villas Ltd v Diamond Resorts Ltd?
Held that leisure facilities / mere right of recreation will accommodate the land where the dominant tenement is for recreational purposes itself
(BE CAREFUL IN APPLYING THIS CASE DUE TO THE NUMERUS CLASUS RULE)
What does it mean for an easement to be the subject matter of a grant?
Easement must be capable of being granted by deed by the necessary people and title to grant such right
For an easement to be capable of grant, what is the requirement of the servient owner?
Must be no positive burden on the servient owner: they do not have to do anything but simply allow the right to continue (Rance v Elvin)
What was said in the case of Phipps v Pears?
A right to protection from the weather is entirely negative and cannot be capable of being the subject matter of a grant
What is the ouster principle?
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
Test of degree, if the right granted in relation to the area is such that it would leave the servient owner without any reasonable use of his land
Moncrieff v Jamieson, said the test should be subsituted for one which asks whether the servient owner retains possession and, subject to the exercise of the right in question, control of the servient land
what are the three ways in which grant for an easement may arise?(ACQUISITION QUESTION)
Express grant
Implied grant
Presumed grant, i.e. long user
What is the difference between a grant of an easement and a reservation of an easement?
GRANT: A sells part of their land so that B now has the dominant land and easement is given to them
RESERVATION: A sells the servient part of the land to B so that they keep an easement the dominant land has
What is the effect of s65 on the reservation of easements?
Servient owner no longer needs to execute the conveyance regranting the easement to the dominant owner, but the servient owner is treated as having granted the easement to the dominant owner
What are the ways in which an implied grant can arise?
-Easement of necessity
-Intended easement
-Rule in Wheeldon v Burrows
-s62 LPA 1925
When will an easement of necessity arise?
Situations where land becomes landlocked and the land cannot be used otherwise at all, this is not upon public policy but on an implication from the circumstances
Nickerson v Barraclough
When will an intended easement arise?
-Where implication arises because the right in question is necessary for the enjoyment of some other right expressly granted (Pwllbach Colliery Ltd v Woodman)
-Where the easement is necessary to enable the dominant owner to use the land for the purposes which it was acquired (Wong v Beaumont Property)
What is the rule in Wheeldon v Burrows?
Where the previous owner of both pieces of land had a quasi-easement that was continuing and apparent for necessary enjoyment of the land, this will mature into a full easement where the dominant land is sold to another
What is the effect of s62 Law of Property Act 1925?
-Word saving effect
-s62(1) Conveyance of land shall be deemed to include and by this act operate to convey with the land all […] liberties, privileges, easements, rights and advantages
