Easements Flashcards
What is an easement?
A proprietary right to use land which belongs to somebody else. The use is more limited than an exclusive right to occupy or use.
What is the dominant tenement?
The land which is benefitted by the easement.
What is the servient tenement?
The land which is burdened by the easement,
How long must an easement be granted for to be a legal easement?
It must be granted for an estate equivalent to an estate in fee simple absolute in possession or a term of years absolute.
If an easement is not granted for the equivalent of a freehold or leasehold estate, what happens?
It can only be an equitable easement.
What is a positive and negative easement?
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
What is a quasi-easement?
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.
What is a public right?
A right of way that is exercised by the general public.
What is a profit a pendre?
Confers a right on the holder to take anything such as produce, animals, fish from the land.
When does a grant exist?
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.
When does a reservation exist?
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.
How is a reservation construed?
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.
What is the basic criteria for an easement to arise by prescription?
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)
What are the strict tests which must be met before a right can be recognised as an easement?
-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
What are the four characteristics that a right must have to become an enforceable legal easement, as set out in Re Ellenborough Park (1956)?
- There must be a dominant and servient tenement
- The right must accommodate the dominant tenement (beneficial impact)
- There must be no common ownership of the dominant and servient land
- The right must lie in grant
What factors will be considered when determining whether a right accommodates the dominant tenement?
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
What requirements need to be met for a right to lie in grant?
-Granted by a capable grantor (over 18 and own a legal estate) to a capable grantee
-Capable of reasonably exact description
-Judicially recognised
Provide examples of the judicially recognised rights.
-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
Can a new type of easement become judicially recognised?
Yes, provided it is not negative in nature.
What are the three disqualifying factors that will prevent a right from being capable of an easement?
- No exclusive possession
- No additional expenditure
- No permission
Describe the ouster principle test in relation to exclusive possession, refer to Batchelor v Marlow (2003).
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.
Describe the possession and control test in relation to exclusive possession, refer to Moncrieff v Jamieson (2007).
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.
Describe the disqualifying factor of no additional expenditure.
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.
Is a servient owner obliged to carry out repairs/maintenance to enable the dominant owner to enjoy an easement?
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).