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Land Law > Easements > Flashcards

Easements Flashcards

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1
Q

What is an easement?

A

An easement is a proprietary right to use land which belongs to somebody else. The use is more limited than an exclusive right to occupy or use.

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2
Q

Who is the grantee in an easement?

A

The grantee is the person who receives the benefit of the easement, and their land is the dominant tenement.

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3
Q

Who is the grantor in an easement?

A

The grantor is the person who grants the easement land, and their land is the servient tenement.

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4
Q

What are examples of easements?

A

Examples include rights of way, drainage, storage, and parking on neighbouring land.

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5
Q

What makes an easement a legal interest in land?

A

An easement is capable of being a legal interest in land if it fulfills the requirements as to duration as per LPA 1925, s 1(2)(a).

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6
Q

What is an example of a legal easement?

A

A right of way granted when part of freehold land is sold will be granted forever. A right of drainage granted in a five-year lease will be granted for the term of that lease.

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7
Q

What is an equitable easement?

A

An equitable easement is one that is not granted for the equivalent of a freehold or leasehold estate.

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8
Q

What is an example of an equitable easement?

A

A right to park granted ‘until the alternative parking facility is completed’ can only be equitable.

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9
Q

What are positive easements?

A

Positive easements allow the holder to use the servient land of another in a particular way.

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10
Q

What are examples of positive easements?

A

Examples include a right of way, right of drainage, and right to park on neighbouring land.

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11
Q

What are negative easements?

A

Negative easements prevent the servient land owner from doing something on their land.

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12
Q

What are the only recognized negative easements at law?

A

The recognized negative easements are a right to light, a right to air, and a right of support.

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13
Q

What is a quasi-easement?

A

A quasi-easement occurs when landowners use paths on their own land, which could become easements if the land is divided.

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14
Q

What distinguishes public rights from easements?

A

Public rights are exercised by the general public, unlike easements which are exercised by individuals or specific bodies.

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15
Q

What is the difference between a licence and an easement?

A

A licence confers a personal right to use land, while an easement is a proprietary right in land.

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16
Q

What is a profit a prendre?

A

A profit a prendre confers the right to take something from the land, unlike an easement.

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17
Q

What is the primary function of a restrictive covenant?

A

The primary function of a restrictive covenant is to restrict what can be done on the servient land.

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18
Q

What is the difference between a grant and a reservation?

A

A grant gives an easement to the buyer/tenant, while a reservation retains a right over the land sold or leased.

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19
Q

How are most easements created?

A

Most easements are created expressly in writing in the transfer deed or lease.

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20
Q

Can easements be created impliedly?

A

Yes, easements can be impliedly created without writing through recognized methods.

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21
Q

What is prescription in relation to easements?

A

Prescription refers to easements arising from long use, typically claimed after 20 years of uninterrupted use.

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22
Q

What are the basic criteria for an easement by prescription?

A

The criteria include continuous user, the right must be exercised without force, secrecy, or permission.

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23
Q

What are the four tests for an easement according to re Ellenborough Park?

A

1) There must be a dominant and servient tenement. 2) The right must accommodate the dominant tenement. 3) There must be no common ownership of the two tenements. 4) The right must lie in grant.

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24
Q

What is the significance of the case Re Ellenborough Park?

A

The case established essential characteristics of an enforceable legal easement.

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25
Q

What are the essential characteristics of an easement?

A

1) Dominant and servient tenement. 2) Right must accommodate the dominant tenement. 3) Diversity of ownership. 4) Right must lie in grant.

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26
Q

What does it mean for a right to accommodate the dominant tenement?

A

The right must have a direct beneficial impact on the dominant tenement and not be personal to the owner.

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27
Q

What happens if the dominant and servient land come back into common ownership?

A

Any easements enjoyed would be extinguished.

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28
Q

What must the right capable of forming the subject-matter of?

A

The right must be capable of forming the subject-matter of a deed.

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29
Q

What is required for the right to be judicially recognized?

A

The right should be within the general nature of rights traditionally recognized as easements.

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30
Q

What is the dominant tenement in relation to the right?

A

The dominant tenement is the land which benefits from the right.

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31
Q

What does it mean for the right to accommodate the dominant tenement?

A

The right must benefit the land and not be personal to the dominant landowner.

If a right benefits a business, it will benefit the land if the business is connected to the normal use of the land.

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32
Q

What is required regarding the ownership of the dominant and servient land?

A

There must be no common ownership of the dominant and servient land.

33
Q

How can diversity of ownership be achieved?

A

Diversity of ownership can be achieved by sale or lease.

34
Q

What does it mean for the right to lie in grant?

A

The right must be capable of being described in words or by reference to a plan, and the right must be judicially recognised.

35
Q

What are disqualifying factors for an easement?

A

The presence of any one of these factors will prevent the right from being capable of being an easement:
1. No exclusive possession of the servient tenement.
2. No additional expenditure by the servient owner.
3. No permission required from the servient owner.

36
Q

What does ‘no exclusive possession’ mean in the context of easements?

A

Easements are limited rights to use servient land. If the dominant owner’s use amounts to exclusive possession, it cannot be an easement.

37
Q

What are the two tests for exclusive possession?

A
  1. Batchelor v Marlow test: the ‘ouster principle’.
  2. Moncrieff v Jamieson test: the ‘possession and control’.
38
Q

What was the outcome of Batchelor v Marlow regarding exclusive possession?

A

The Court of Appeal held that Batchelor had no reasonable use of the land, so the claimed right could not be an easement.

39
Q

What was the key finding in Moncrieff v Jamieson regarding exclusive possession?

A

Lord Scott proposed a flexible test asking whether the servient owner retains ultimate possession and control of the servient land.

40
Q

What is the implication of ‘no additional expenditure’ for easements?

A

If the dominant owner’s exercise of a right requires the servient owner to incur extra costs, the right is disqualified from being an easement.

41
Q

What does ‘no permission’ mean in the context of easements?

A

The dominant owner must exercise the right as of right, without needing to ask for permission each time.

42
Q

What is an implied legal easement?

A

An easement that is implied into a transfer deed or a legal lease.

43
Q

What is an implied equitable easement?

A

An easement that is implied into a contract or an equitable lease.

44
Q

What is the requirement for an easement to be implied by necessity?

A

An easement will be implied by necessity where its existence is essential for the use of the dominant tenement.

45
Q

What is the significance of the case Wong v Beaumont Property Trust Ltd?

A

This case illustrates how an easement can be implied by common intention when essential for the use of the property.

46
Q

What is the rule in Wheeldon v Burrows?

A

An easement will be implied into a document from which it was omitted, based on rights previously exercised by the common owner.

47
Q

What are the requirements for the rule in Wheeldon v Burrows to apply?

A
  1. The right must have been continuous and apparent.
  2. The right must be necessary for the reasonable use of the land.
48
Q

What does LPA 1925, s 62 imply?

A

A conveyance of land includes all easements, rights, and advantages enjoyed with that land.

49
Q

What is the ‘upgrade effect’ of LPA 1925, s 62?

A

It allows for the implication of a brand-new easement into a document, upgrading informal rights into full legal easements.

50
Q

What was the outcome of Wright v Macadam regarding implied easements?

A

The court found that LPA 1925, s 62 operated to imply the informal right to use the shed into the new lease as a full legal easement.

51
Q

What was the court’s decision regarding Mrs. Wright’s claim to use the shed?

A

The court found in her favour, implying a legal easement under LPA 1925, s 62.

52
Q

What does LPA 1925, s 62 imply in the context of easements?

A

It implies an informal right to use property into a new lease as a full legal easement.

53
Q

What are the two effects of LPA 1925, s 62?

A
  1. Implies easements in landlord-tenant situations after lease expiration. 2. Applies to quasi-easements when the right is continuous and apparent.
54
Q

What is required for a right to be considered continuous and apparent?

A

The right must have been exercised recently and regularly, with physical evidence present.

55
Q

What is implied acquisition by necessity?

A

An easement may be impliedly acquired when essential for the dominant tenement’s use, typically a right of way for landlocked land.

56
Q

What conditions must be met for an easement to be implied by necessity?

A

The easement must be essential for access; alternatives being inconvenient or advantageous are insufficient.

57
Q

What is implied acquisition by common intention?

A

An easement may be implied when the dominant land is sold or leased for a specific purpose known to both parties.

58
Q

What is required for an easement to be implied by common intention?

A

The easement must be essential to achieve the common purpose, with a heavy burden on the party claiming it.

59
Q

What does the rule in Wheeldon v Burrows state?

A

It implies the grant of an easement when there is a common owner enjoying quasi-easements over their land.

60
Q

What are the requirements for an easement under Wheeldon v Burrows?

A

The right must be continuous, apparent, necessary for reasonable enjoyment, and in use by the common owner at transfer.

61
Q

What does LPA 1925, s 62 imply regarding easements?

A

It implies the grant of an easement but not its reservation, applicable in specific situations like Wright v Macadam.

62
Q

What situations does LPA 1925, s 62 apply to?

A
  1. Wright v Macadam: informal permission becomes an easement upon re-letting or sale. 2. P&S Platt v Crouch: easement implied if continuous and apparent.
63
Q

What types of easements does LPA 1925, s 62 imply?

A

It only implies legal easements into deeds, not equitable easements.

64
Q

What must the dominant owner have to enforce an easement?

A

The dominant owner must have the benefit of the easement and thus the ability to sue.

65
Q

Is a properly created easement enforceable by the dominant owner against the servient owner?

A

Yes, a properly created easement is always enforceable by the dominant owner against the servient owner.

66
Q

What happens to the benefit of the easement if the dominant land changes hands?

A

The benefit, which is part of the land, passes with the transfer of the land.

67
Q

Does it matter if the easement is legal or equitable for it to pass with the dominant land?

A

No, it does not matter whether the easement is legal or equitable, or whether the land is registered or unregistered.

68
Q

How are express legal easements enforceable against a new servient owner in registered land?

A

A properly created express legal easement will always be enforceable against a new servient owner as it must be substantively registered.

69
Q

What case supports the enforceability of express legal easements in unregistered land?

A

Mercer v Liverpool, St Helen’s and South Lancashire Railway Co (1903) supports that legal interests bind the world.

70
Q

What happens to express legal easements upon transfer of the servient land?

A

The express legal easement will be an interest overriding the first registration of the servient land and will be noted on the charges register.

71
Q

What are the conditions for an implied legal easement to be an overriding interest in registered land?

A

The easement must be within the actual knowledge of the new owner, be obvious on inspection, or have been exercised within a year before the transfer.

72
Q

How are implied legal easements enforceable in unregistered land?

A

An implied legal easement is enforceable like an express legal easement under the principle ‘legal interests bind the world.’

73
Q

What is required for an express equitable easement to be enforceable against a new servient owner in registered land?

A

It must be protected by entering a Notice in the charges register of the servient land.

74
Q

What happens if an express equitable easement is not protected in registered land?

A

If not protected, the easement is not binding on a purchaser for valuable consideration.

75
Q

What must be done for express equitable easements over unregistered land to be enforceable?

A

A Class D(iii) Land Charge must be entered in the Land Charges Register.

76
Q

What is the consequence of not protecting an express equitable easement over unregistered land?

A

The easement is not binding on a purchaser for money or money’s worth of a legal estate.

77
Q

How are implied equitable easements protected?

A

The method for protection and rules on enforceability are the same as for express equitable easements.

78
Q

What is a significant issue with implied equitable easements?

A

It is unlikely that someone with an implied equitable easement would consider protecting their interest formally.

79
Q

What is the summary of enforceability of easements?

A

The benefit passes to a new dominant owner via LA 1925, s 62. Express legal easements are automatically binding in registered and unregistered land. Implied legal easements are binding in both types of land. Express and implied equitable easements must be protected to be enforceable.

Land Law (10 decks)

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