Easements

Question 1

Easement definition

Answer 1

Landowner’s right to use another parcel of land to benefit his own land

Question 2

Profit a prendre definition

Answer 2

Right to remove from someone else’s land something that exists there naturally

Question 3

Is an easement capable of being legal?

Answer 3

Yes

Question 4

When can an easement be legal?

Answer 4

If it’s granted forever, or for a fixed period

Question 5

4-step test for whether it’s an easement:

Answer 5

1. there must be dominant + servient land
2. easement must accommodate the dominant land (it must be connected with its normal use, and benefit the land, not the owner)
3. dominant and servient land cannot be owned and occupied by the same person
4. easement must be capable of being the subject matter of a grant

Question 6

4 factors for whether an easement is capable of being the subject matter of a grant

Answer 6

1. it must be capable of reasonably exact definition (can be for recreational purposes, but not eg. right to view)
2. cannot involve expenditure by servient owner
3. cannot be so extensive so as to amount to joint possession of the servient land (duration + space)
4. it shouldn’t be a new type of negative easement

Question 7

Can a right to light be an easement?

Answer 7

Not automatically: but, can be an easement in relation to a defined aperture
It’s breached if there’s less light than what’s required for “ordinary purposes”

Question 8

6 methods for creating an easement:

Answer 8

1. express grant/reservation
2. implied by necessity
3. implied by common intention
4. rule in Wheeldon v Burrows
5. s.62 LPA (uplifting licence)
6. prescription

Question 9

When is an easement implied by necessity?

Answer 9

ONLY if the land cannot be used without it AT ALL (very rare)

Question 10

When is an easement implied by common intention?

Answer 10

When the common purpose for the land is known to the parties, and the right is needed to fulfil the purpose

Question 11

Rule in Wheeldon v Burrows

Answer 11

Quasi-easement passes to the buyer if:
1. quasi-easement existed prior to sale
2. right must be continuous + apparent,
3. right must be necessary to reasonable enjoyment of the land,
4. right must be in use at the time of sale
If met, then converted into legal easement!

Question 12

s.62 LPA

Answer 12

It uplifts a licence into an easement/profit if:
1. there’s a conveyance
2. there’s diversity at the time of grant (unless easement of light, or rights continuous + apparent)
3. there’s an existing privilege at the date of conveyance
4. right is capable of being an easement/profit

Question 13

For an easement to arise by any form of prescription, the right must be exercised:

Answer 13

• continuously, and
• as of right: without force, secrecy, and permission

Question 14

Time period after which easement or profit may arise by prescription:

Answer 14

Easement: 20 years
Profit: 30 years

Question 15

Prescription at common law

Answer 15

Grant of easement presumed if it’s been used for past 20 years (presumed to have been since time immemorial)
Rebut by showing that at some point since 1189:
- right wasn’t exercised,
- right couldn’t have been exercised,
- dominant + servient land owned by same person

Question 16

Prescription under doctrine of lost modern grant

Answer 16

Grant of easement presumed if enjoyed for at least 20 years, as it’s presumed that there was a grant of right since 1189

Question 17

Prescription under Prescription Act

Answer 17

Prescriptive easement may be granted if exercised for last 20 years, even if use clearly started after 1189, if:
- there was uninterrupted enjoyment for at least 20 years immediately preceding the action (up to 1 year interruptions allowed)