Easements

Question 1

What is an easement?

Answer 1

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

Question 2

What is the dominant tenement?

Answer 2

The land which is benefitted by the easement.

Question 3

What is the servient tenement?

Answer 3

The land which is burdened by the easement,

Question 4

How long must an easement be granted for to be a legal easement?

Answer 4

It must be granted for an estate equivalent to an estate in fee simple absolute in possession or a term of years absolute.

Question 5

If an easement is not granted for the equivalent of a freehold or leasehold estate, what happens?

Answer 5

It can only be an equitable easement.

Question 6

What is a positive and negative easement?

Answer 6

Positive: allow the holder to use the servient land of another in a particular way e.g. right of way

Negative: prevent the servient land owner from doing something on their land by giving the dominant land owner a right to receive something e.g. right to light, right to air

Question 7

What is a quasi-easement?

Answer 7

A right to use one part of a property for the benefit of another part, even though it is not formally granted. If the property is divided and the use continues, it can become an implied easement.

Question 8

What is a public right?

Answer 8

A right of way that is exercised by the general public.

Question 9

What is a profit a pendre?

Answer 9

Confers a right on the holder to take anything such as produce, animals, fish from the land.

Question 10

When does a grant exist?

Answer 10

A grant exists where C, a landowner, sells or leases part of C’s land to D, and gives to D an easement over the land which C has retained.

Question 11

When does a reservation exist?

Answer 11

A reservation exists where C sells or leases part of C’s land to D, and retains a right over the land sold or leased to D.

Question 12

How is a reservation construed?

Answer 12

A reservation is strictly construed against the person reserving it, because they are in a position to reserve exactly what is required and are assumed to have done so-any attempt to extend the right would fail.

Question 13

What is the basic criteria for an easement to arise by prescription?

Answer 13

Continuous user-‘reasonably regular use’ by a freeholder or successive freehold owners against a freeholders

As a right-the right must have been used without force, secrecy and permission

Uninterrupted enjoyment-for 20 years, no use for 1 year or more will equate to an interruption (Prescription Act 1832)

Question 14

What are the strict tests which must be met before a right can be recognised as an easement?

Answer 14

-The right must be capable in principle of being an easement-satisfying the tests laid down in re Ellenborough Park (1956)

-The right must not be prevented from being an easement by a disqualifying factor

-The right must have been acquired as an easement

Question 15

What are the four characteristics that a right must have to become an enforceable legal easement, as set out in Re Ellenborough Park (1956)?

Answer 15

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

Question 16

What factors will be considered when determining whether a right accommodates the dominant tenement?

Answer 16

Useful factors to consider were outlined in P & A Swift Investments Ltd v Combined English Stores Group (1989):

-Only benefits dominant owner whilst they own dominant land
-Affects nature, quality use or value of dominant land
-Not expressly personal

Question 17

What requirements need to be met for a right to lie in grant?

Answer 17

-Granted by a capable grantor (over 18 and own a legal estate) to a capable grantee

-Capable of reasonably exact description

-Judicially recognised

Question 18

Provide examples of the judicially recognised rights.

Answer 18

-right of way
-right of drainage
-right of support
-right to use sporting and leisure facilities
-right to use land for recreational purposes
-right of storage
-right to park

Question 19

Can a new type of easement become judicially recognised?

Answer 19

Yes, provided it is not negative in nature.

Question 20

What are the three disqualifying factors that will prevent a right from being capable of an easement?

Answer 20

1. No exclusive possession
2. No additional expenditure
3. No permission

Question 21

Describe the ouster principle test in relation to exclusive possession, refer to Batchelor v Marlow (2003).

Answer 21

The D had a right to park six cars on commercial land belonging to D from 8:30am-6pm on weekdays. The C argued this was too intense to be an easement.

It was held the C was left with no reasonable use of the land, so the right claimed could not be an easement. The restrictions make the C’s ownership of the land ‘illusory’.

The easement should not oust the servient owner from the land.

Question 22

Describe the possession and control test in relation to exclusive possession, refer to Moncrieff v Jamieson (2007).

Answer 22

The C claimed a right to park on a cliff top belonging to the D. The D argued the use of the space amounted to exclusive possession, relying on the ouster principle that he had no reasonable use of space left.

Court adopted a more flexible test and held that use did not amount to exclusive possession. Applied the test that considers whether the servient owner retains ultimate possession and control of the servient land.

Question 23

Describe the disqualifying factor of no additional expenditure.

Answer 23

If the exercise of a right by the dominant owner requires the servient tenement owner to spend extra money, the right is disqualified from being an easement as a positive obligation is inconsistent with an easement.

Question 24

Is a servient owner obliged to carry out repairs/maintenance to enable the dominant owner to enjoy an easement?

Answer 24

No, but they are obliged to allow the dominant owner to come onto the servient land and carry out repairs at their own expense as per Jones v Pritchard (1908).

Question 25

Describe the disqualifying factor of no permission.

Answer 25

After the initial grant, the dominant owner must exercise the benefit as of right. If the dominant owner asks for permission every time, it cannot be an easement.

Question 26

What are the requirements for creation of an express legal easement?

Answer 26

-The right must be granted or reserved forever or for a set period of time

-It must be created by a deed and comply with the formalities for a deed

-It must be substantively registered at the Land Registry

Question 27

If an easement is for an uncertain term, what minimum formalities are required to be an equitable easement?

Answer 27

The minimum formalities are set out in LPA 1925, s53(1)(a):

-must be made in writing
-must be signed by the grantor

Question 28

If an easement has not been created correctly, when may equity interpret the transaction as an enforceable contract to create a legal easement?

Answer 28

The formalities for an estate contract set out in LP(MP)A 1989, s2 must be complied with:

-must be made in writing
-must include all expressly agreed terms
-must be signed by both parties

Question 29

What are the four methods of implied acquisition of an easement?

Answer 29

1. Necessity;
2. Common intention of the parties;
3. The rule in Wheeldon v Burrows; and
4. LPA 1925, s62

If one of these apply, the easement will be implied into a document it was omitted from.

Question 30

What is an implied legal easement?

Answer 30

When the easement is implied into a transfer deed or legal lease.

Question 31

What is an implied equitable easement?

Answer 31

When the easement is implied into a contract or an equitable lease.

Question 32

When will an easement by implied by necessity?

Answer 32

This is available where someone is claiming to have been granted an easement impliedly. This method is of very narrow scope.

An easement will be implied by this method where it can be shown that its existence is essential in order than any use of the dominant tenement can be made. It is only available for a right of way over landlocked land.

Question 33

When will an easement be implied by common intention?

Answer 33

This is available where someone is claiming to have been granted an easement impliedly.

It will apply where land has been sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the easement sought. The parties must have had a specific intention that the land was to be used for a certain purpose.

Question 34

What is the rule in Wheeldon v Burrows and when does it operate?

Answer 34

This is available where someone is claiming to have been granted an easement impliedly. It is not possible for an easement to have been impliedly reserved under this rule.

The rule can only operate on a sale or lease when, immediately prior to the transfer or lease, there was a common owner and occupier of the whole. As soon as there is division of ownership/occupation, any quasi-easements that existed at the time of division can become full easements benefitting the land which has now become the dominant tenement.

Question 35

What are the requirements to satisfy the rule in Wheeldon v Burrows?

Answer 35

-The right must have been enjoyed as a quasi-easement by the seller or landlord before the land was divided

-The quasi-easement must have been continuous and apparent (some degree of permanence and must be a clue as to existence of right from a careful inspection of the land)

-The quasi-easement must be necessary for the reasonable enjoyment of the dominant land (must enhance the land in some way)

-The quasi-easement must be in use by the common owner at the date of the transfer/lease of the dominant land

Question 36

When will an easement be implied under LPA 1925, S62?

Answer 36

This method is only available where someone is claiming to have been granted an easement impliedly. It will only imply an easement into a conveyance (a deed) thereby creating an implied legal easement.

LPA 1925, s62: a conveyance of land includes all easements, rights and advantages enjoyed with that land.

Question 37

What are the requirements for the ‘upgrade effect’ under LPA 1925, S62?

Answer 37

-Only applies where the right being claimed would have been a grant to the C

-Must have been prior diversity of occupation of the dominant and servient land

-An informal permission or licence must have been granted to the occupier of the dominant tenement to use the servient land in some way

-There must have been a conveyance (a transfer by deed/legal lease) of the dominant tenement

Question 38

Are express legal easements automatically binding in registered and unregistered land?

Answer 38

Yes, they are binding on both forms of land.

In registered land due to substantive registration.

In unregistered land because ‘legal interests bind the world’: Mercer v Liverpool Railway Co (1903).

Question 39

Are implied legal easements binding in registered and unregistered land?

Answer 39

Yes, they are binding on both forms of land.

In registered land as overriding interests (LRA 2002, Sched 3 para 3) provided that:

-the easement is within the actual knowledge of the new owner; or
-it is obvious on a reasonably careful inspection of the servient land; or
-it has been exercised within a year before the transfer of the servient land.

In unregistered land because ‘legal interests bind the world’: Mercer v Liverpool Railway Co (1903)

Question 40

How must express/implied equitable easements in registered land be protected to be enforceable?

Answer 40

By notice in the Charges Register of the servient land (LRA 2002, s29(2).

If not done, the easement is not binding on a purchaser for value (LRA 2002, s29(1), but is binding on a volunteer (s28).

Question 41

How must express/implied equitable easements in unregistered land be protected to be enforceable?

Answer 41

By a Class D(iii) Land charge: LCA 1972, s2(5)(iii). If done, the easement binds everyone (LPA 1925 (s198).

If not done, the purchaser for money/money’s worth is not bound (LCA 1972, s4(6)) but the volunteer is.

Question 42

What remedies are available to enforce an easement?

Answer 42

-Mandatory injunction to remove obstruction

-Prohibitory injunction to prevent interference with enjoyment of the easement

-Damages in lieu of injunction or in addition to it