Easements

Question 1

What is an easement?

Answer 1

A right for one landowner to make use of another parcel of land for the benefit of their own land.

Question 2

What is a profit a prendre?

Answer 2

A right for someone to go onto someone else’s land and remove something from the land which exists naturally e.g. fishing, grazing animals, hunting

Question 3

Do easements exist legally or in equity?

Answer 3

Easements which comply with the LPA are capable of being legal, but they must exist forever or for a fixed ascertainable period.

An easement created for an uncertain duration will exist in equity only.

Question 4

In respect of easements, what does ‘servient tenement’ mean?

What is the owner called?

Answer 4

The land over which the easement is exercised (the burdened land)

The owner is the servient owner

Question 5

In respect of easements, what does ‘dominant tenement’ mean?

What is the owner called?

Answer 5

The land which enjoys the right (the benefiting land)

The owner is the dominant owner

Question 6

What are the essential characteristics of an easement?

Answer 6

1. There must be a servient and dominant tenement
2. The easement must accommodate the dominant tenement
3. The dominant and servient tenements must not be owned and occupied by the same person
4. The easement must be capable of forming the subject matter of the grant

Question 7

What is a ‘quasi-easement’?

Answer 7

Where the rights are exercised by the sole owner of two properties - they can be converted to easements upon the sale of part of the land.

Question 8

How do you determine if an easement is capable of forming the subject matter of the grant?

Answer 8

An easement must be capable of reasonably exact definition

An easement must not involve any expenditure by the servient owner

An easement must not be so extensive as to amount to a claim to joint possession of the servient tenement

The law will be cautious when applying a claim for a new negative easement.

Question 9

When is an easement capable of being legal?

Answer 9

Easements which comply with s 1(2)(a) LPA are capable of being legal, but they must exist forever or for a fixed ascertainable period.

An easement created for an uncertain duration will exist in equity only.

Question 10

How can an easement be created? (6)

Answer 10

Express grant/reservation
Implied by necessity
Implied by common intention
The rule in Wheeldon v Burrows
Section 62 LPA 1925
Prescription

Question 11

When is an easement implied by necessity?

Answer 11

When there is a sale of a land-locked parcel of land which has absolutely no means of access to it from a public highway.

Question 12

When is an easement implied by common intention?

Answer 12

The law will impliedly grant (or reserve) an easement into a conveyance of land where the parties to the conveyance held a common intention that the transferred (or retained) land would be used for a particular purpose, and that purpose is possible only if an easement is granted over the retained (or transferred)

Question 13

What is the rule in Wheeldon v Burrows in relation to easements?

Answer 13

Where a quasi-easement is converted into an easement in certain circumstances:

• There must be a quasi-easement prior to the sale
• The right must be continuous and apparent
• The right must be necessary to the reasonable enjoyment of the land sold
• The right must be in use at the time of the sale

Question 14

When is an easement created under section 62 LPA 1925?

What are the requirements?

Answer 14

If nothing to the contrary is stated in a conveyance deed, the conveyance is deemed to pass all easements which exist pertaining to the land.

• the conveyance must be a written document / instrument
• there must be diversity of ownership of the two parts of land
• there must be an existing privilege at the date of the conveyance
• the right must be capable of being an easement or profit

Question 15

What is an easement by prescription and what are the three types?

Answer 15

Where a dominant owner can show use of the right of land for 20 years.

Common law, doctrine of lost modern grant and the Prescription Act

Question 16

What must be exercised to show an easement by prescription?

Answer 16

The right must be used continuously and without force, secrecy or permission.

Question 17

How can prescription by common law be rebutted?

Answer 17

If it can be shown the right was not exercised, the right could not have been exercised or the dominant and servient tenement were vested in the same owner.

Question 18

What is required to claim a prescriptive easement or profit under the Prescription Act 1832?

Answer 18

Prove uninterrupted use for 20 years (30 years for profits).

The 20-year period is counted backward from the date of legal action.

Short breaks are allowed, but breaks longer than 1 year stop the 20-year period.

If interrupted for over a year, the 20-year period restarts, but the “lost modern grant” may help in some cases

Question 19

What is the doctrine of the Lost Modern Grant in relation to prescriptive easements?

Answer 19

A legal fiction used when there has been an interruption in the use of an easement for more than one year.

It assumes a grant of the easement was made in the past but has been lost over time.

Helps claim prescriptive rights even if the 20-year period was interrupted.