Easements

Question 1

The dominant tenenmant enjoys the…

Answer 1

…easement.

Question 2

What must the easement do?

Answer 2

It must satisfy:
1. Must benefit the dominant tenemant
2. Easement must be related to the land and not personal benefits
3. The dominant and subservient tenements must be next to eachother.

Question 3

Easements give a right or access etc across the subservient tenements land… true or false?

Answer 3

True

Question 4

What does it mean when the easement should ‘lie in grant’?

Answer 4

That the easement is clear and not vague. Names what the specific right for the dominant tenement is.

Question 5

Does the easement mean the dominant tenement needs to ask for permission every time they want to exercise their easement right?

Answer 5

No. This is not how easements work.

Question 6

Does a subservient tenement have to spend money on upholding the easement etc?

Answer 6

NO

Question 7

Who grants the easement?

Answer 7

The subservient tenement.

Question 8

Who enjoys the easement?

Answer 8

The dominant tenement.

Question 9

How can an easement be created for registered land?

Answer 9

MUST BE REGISTERED VIA DEED + registered in Land Registry.

Question 10

How can an easement pass onto the successive dominant tenement (successor-in-title) where there is registered land?

Answer 10

The easement should be in deed AND registered in the Land Registry. This will create a reservation of the easement for the new owner’s use.

Question 11

How can an easement be made real for unregistered land then?

Answer 11

By doing nothing fr. It passes as a legal interest.

Question 12

What happens if easement is not registered for land that is registered?

Answer 12

It becomes an equitable easement. Not binding on new purchasers who are not unaware of the easement.

Does not effect bona fide purchaser without notice.

Question 13

When something is an equitable interest or easement, can it be binding?

Answer 13

Only when the purchaser is aware of it.

When it has been registered in the respective place.

When it is an overriding interest, such trust, which can be removed via purchasing from 2 trustees.

Question 14

When can an easement be created impliedly? 4 ways. Arises when there has been a sale of land

Answer 14

1. Necessity - when it is needed for DT to be able to use their land (such as a right of passage)
2. Common intention of parties (only applicable on the sale of a part of land by main owner) - the land has been sold or leased for a particular purpose and therefore the easement is needed for the ownership of it to work. Such as drains running through ST’s land that they did not know about on purchase. These pipes would be needed for DT to live on their land and this is something ST should have assumed from what DT said.
3. For QUASI-EASEMENTS: Wheeldon v Burrows implied easment: when B buys A PART OF A’s land and this includes some easements - which now becomes necessary for B’s use of land.
4. Section 62 LPA: when informal rights or agreements are converted into easements.

Question 15

What 2 things are needed for the Wheeldon v Burrows implied easment type to bring to life an easement?

Answer 15

Evidence that before the land was split and purchased:

That the use of this ‘easement’ was:

1. Continuous and apparent - must be noticeable upon inspection.
2. Necessary for the reasonable enjoyment of the land for DT.

Question 16

How to register an easement for registered land?

Answer 16

Deed. From ST to DT. Signed by the ST and witnessed by a 3rd party. DT must have this registered at the Land Registry.

Question 17

How can a common law prescriptive easement be proved? when it has not been legally registered

Answer 17

Continuous use of the easement for 20 years including before the year 1189. This right of easement can be rebutted by the potential ST saying that the easement did not exist before 1189.

Also, prescriptive easement arises when there has continuous use for 20 years + with an express right to use it, mere permission is not enough.

MUST BE BETWEEN 2 FREEHOLD OWNERS.

Question 18

What happens if ST allowed DT (on lease) to use X and on a renewal of lease, the permission has not been made into the deed. And then ST states that they will no longer allow the use of X?

Answer 18

Section 62 LPA: when informal rights or agreements are converted into easements

will operate and X can still be used by DT.
Especially if the use of X is not too excessive and ST’s own enjoyment of land is not affected.

Question 19

When there is an agreement between ST and DT (lessee) about the use of the land (such as a right to walk across ST’s land. What happens if ST sells land to DT but this right has not been mentioned in the deed?

Answer 19

Section 62 LPA: when informal rights or agreements are converted into easements

will operate and the right of way can still be used by DT.

This is the case where Wheeldon v Barrows easement thing can’t be used because it the right is not necessary for the use and enjoyment of the land.

Question 20

What is a quasi-easement?

Answer 20

When the landowner sells a part of their land, which they basically have been using to access the main road. The landowner owns a certain quasi-easement over this land.

Needs whole ownership.
Diversification of ownership (aka when one part of the land is owned by one and the other other by another, with an easement arising = not quasi-easement).

Question 21

What type of easements does the implied easement of Wheeldon v Burrows apply to?

Answer 21

Quasi-easements.

Question 22

Who has a duty to maintain an easement (aka keep the right of way falling into disrepair)?

Answer 22

NO ONE. Not the ST, not the DT.

Easement is about doing nothing. Covenant is about doing nothing or something.

Question 23

When it comes to the light being received by DT’s land and any new erections on the ST’s land affecting the light received on DT’s land, is such a light easement automatic?

Answer 23

No.
If there is an agreement between the 2 parties however, the Section 62 LPA: when informal rights or agreements are converted into easements, can be said to be operating

Question 24

Section 62 LPA: when informal rights or agreements are converted into easements

Answer 24

When an agreement held previously, considered a license, crystalises and becomes an easement - either over time or on sale or on a renewed lease, where there is no mention of the agreement/ easement in the contract of sale etc.

Question 25

When does the common intention of parties implied easement arise?

Answer 25

When the land is sole ownership and then a part of it is sold to someone else.

Question 26

When is something not an easement?

Answer 26

When whatever right the ST grants to DT, actually affects the reasonable enjoyment of ST’s own land … an easement should never really negatively impact ST’s own use of their land. Batchelor v Marlow principle

Question 27

In covenants, ST and DT must be directly nect to each other, is this also true for easements?

Answer 27

No. For easements, ST and DT do not have to be next to eachother.

Question 28

When an easement is granted in the deed, what must be done?

Answer 28

Must be registered in the Land Registry.

Must be forever or for a fixed duration.

Question 29

What is Lost Modern Grant presription easement?

Answer 29

20 years of use of a promise between ST and DT - can be interrupted use provided that the interruption only happened after the 20 years.

Question 30

What is a proprietary estoppel easement?

Answer 30

When DT relies on a promise made by ST for a right of way and then suffers detriment of some sort because they relied on this promise and ST has now pulled back on it.
ST will be forced by courts to keep this promise and an easement will be made.

Question 31

IS the legality of easements different for registered and unregistered properties?

Answer 31

Yes.
Registered land: easement should be registered.

Unregistered land: automatically binding.