Easements Flashcards
What is an easement?
A proprietary right to use land which belongs to somebody else.
Can only exist between two freehold owners.
Who’s land is the dominant tenement?
The person who receives the benefit of the easement - the grantee
Who’s land is the servient tenement?
The person who grants the easement and is burdened by the easement - the grantor.
When is an easement a legal interest in land?
If it is equivalent to a freehold or a leasehold estate. If not - it can only be equitable.
What are the only recognised negative easements at law?
A right to light - in relation to a defined aperture
A right to air
A right to support (from a wall)
What are quasi easements?
Use of something (e.g. paths on your own land) that may become easements if the land were ever divided.
What is a profit a prendre?
Confers a right to take something from the land.
What is a restrictive covenant?
Restricts what can be done on the servient land.
What is a grant?
Where a landowner sells or leases part of their land to a third party, and grants the third party an easement over the land they have retained.
What is a reservation?
Where a landowner sells or leases part of their land to a third party, and reserves a right of way for themselves over the third parties land.
Which of a grant or a reservation is more strictly construed, and why?
Reservation - as the person who enjoys the benefit of the easement had the express ability to set out what they wanted to retain.
How are easements created?
They can be made expressly or implied into documents.
Or granted by prescription - ‘long use’.
When can an easement be claimed by prescription?
If exercised for over 20 years.
Prescription will succeed under the Prescription Act 1832 if the use can prove uninterrupted enjoyment for the 20 year period.
No use for over one year = interruption.
How is uninterrupted enjoyment proven? [prescription]
Continuous user - a ‘reasonably regular use’ by a freeholder or successive freehold owners against a freeholder.
As a right - without force, without secrecy, and without permission.
What is the three step process for establishing whether something is an easement?
1) Capability - Re Ellenborough Park
2) Disqualifying factors
3) Has it been acquired?
What four elements must exist to consider something an easement?
There must be a dominant and servient tenement
The right must accomodate the dominant tenement (proximity)
There must be diversity of ownership
The right must lie in grant
What must you consider to judge whether an easement accommodates the dominant tenement?
Does the right benefit any owner of the land?
Does it cease to be of use once the dominant owner has parted with the land?
Does the right make the dominant land a better or more convenient property?
Does the right add value or amenity to the dominant land?
What happens if an easement benefits a business which exists on the land?
Must consider whether the business is a necessary incident to the use of the land, or an unconnected business. If there is a connection between the land / business run from the land, a right that benefits the business will also benefit the land.
What features must an easement have to make it capable of forming the subject matter of a deed (for point 4 of Re Ellenborough Park - the right must lie in grant)?
Granted by a capable grantor to a capable grantee
Capable of reasonably exact description
Judicially recognised
Name some examples of rights which have been judicially recognised?
Right of way
Right of drainage and other rights through pipelines
Right of support
Right to use sporting and leisure facilities
Right to use land for storage / parking
Name the three disqualifying factors which will make an easement ineligible to be an easement.
Exercise of the right must not amount to exclusive possession of the servient tenement
Must not involve additional, unavoidable expenditure by the servient owner
Cannot depend upon permission being given by servient owner.
What are the two tests relevant for considering exclusive possession?
The ouster principle
The possession and control test
What is the ouster principle?
Is there any reasonable use of the land remaining? This test is binding law.
What is the possession and control test and how does it differ from the ouster principle?
Asks whether the person retained possession and control of the land - this test is much more flexible.
If you can do anything on the land except interfere with the right (here, the parking and storage), it probably won’t be disqualified.
Who carries out repairs for an easement?
The dominant owner must be allowed onto servient land to do repairs at dominant owner’s expense.
When can an easement be capable of being legal?
If it is granted forever (e.g. freehold) or of a term equivalent to a leasehold. If it does not fit either of these, it can only ever be equitable.
What formalities are required to create an express legal easement?
Deed and registration
Deed - LPA 1925, s52, which must be compliant with LP(MP)A s1
(Labelled as a deed, signed by grantor and witnessed, dated).
Registered at land registry.
What formalities are required to create an equitable easement?
Made in writing and signed by the grantor
No need to register it
How might a court approach an easement which falls in the definition of legal easement but has not been created correctly?
Consider it an estate contract as long as it complies with the formalities for an estate contract under LP(MP)A 1989 s2
Made in writing
signed by both parties
Includes all expressly agreed terms.
What are the four methods of implied acquisition?
Necessity
Common intention of the parties
The rule in Wheeldon v Burrows
LPA 1925, s62
Will be implied into a document from which it was omitted.
When will an easement be implied by necessity?
If its existence is essential to show that any use of the dominant tenement can be made. Only example of this is a right of way to otherwise landlocked land.
Method has a very narrow scope
Can be grants or reservations
When will an easement be implied by common intention?
Can be grants or reservations
Will be implied where land has been sold / leased to another for a particular purpose, and the purpose cannot be fulfilled without the easement sought.
Or, if it is necessary for the enjoyment of some expressly granted easement.
The purpose must be known to both parties, and must be essential to achieve the common purpose.
If it is a reservation, the burden of proof will be very heavy to show that the specific easement was mutually intended.
Which type of easements can the rule in Wheeldon v Burrows apply to?
Grants only - not reservations.
What is the rule in Wheeldon v Burrows?
Quasi easements enjoyed by an owner will become easements if the owner sells or leases some of their land.
What are the four requirements for the rule in Wheeldon v Burrows to apply?
Right must have been enjoyed as a quasi-easement by the seller or the landlord before the land was divided
Must be continuous and apparent (some degree of permanence, and evidence on the land that it exists)
Must be necessary for the reasonably enjoyment of the dominant land (enhances the land in some way)
Quasi easement must be in use by the common owner at the time of transfer / lease of the dominant land.
Which type of easements does the LPA 1925, s62 apply to?
Grants only and will only imply them into a conveyance e.g. a deed.
What is the effect of LPA 1925, s62?
When someone buys freehold land or leases land, the buyer or tenant will receive the benefit of all existing easements which affect that land.
Also triggers the upgrade effect, where it can turn informal rights into full legal easements.
What three requirements must there be for the ‘upgrade effect’ of LPA s62?
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 land to use the servient land
There must have been a conveyance of the dominant land.
Implied easement will be legal.
How have later cases reinterpreted the requirement for diversity of occupation under the LPA 1925 s62?
The requirement for prior diversity of occupation is not necessary where the right is continuous and apparent.
What are the key difference between LPA 1925, s62 and the rule in Wheeldon v Burrows?
Using s62 is easier as there are fewer requirements to satisfy - no need to show that the right is necessary to the reasonable use of the land.
S62 is limited to conveyances only - W v B can imply an easement into a contract.
Give the two situations in which the LPA 1925, s62 can operate.
Where the land has been divided before the informal permission is given, and the permission becomes an easement when land is re-let or sold
Where land is divided for the very first time by lease or sale of part if right is continuous or apparent.
What happens to an easement when the dominant land changes hands?
It will always pass with the land - whether it is legal / equitable.
Will an express legal easement on registered land be enforceable against servient land?
Yes always, as to be a legal easement it must be substantively registered.
Will an express legal easement on unregistered land be enforceable against servient land?
Yes because ‘legal interests bind the world’. Since LRA 2002, once land becomes registered, it will become an overriding interest and be noted on charges register.
Will implied legal easements on registered land be enforceable against servient owner?
It will be an overriding interest provided that:
-Easement is within the actual knowledge of the new owner
- It is obvious on a reasonably careful inspection of servient land
- It has been exercised with a year before the transfer of the servient land
Will implied legal easements on unregistered land be enforceable against servient owner?
Yes - legal interests bind the world. On 1st registration, will become an overriding interest
Will an express equitable easement on registered land be enforceable against servient owner?
It will be enforceable if it is protected by a notice in the charges register, to a new purchaser.
Enforceable without a notice to a donee.
Will an express equitable easement on unregistered land be enforceable against servient owner?
Must be protected in order to be enforceable to a new owner by Land Charge
Donee will always be bound.
What are the enforceability rules for implied equitable easements?
Exactly the same as for express equitable easements.
What remedies are available for loss of an easement?
Prohibitory injunction
Damages in lieu of injunction or in addition to it.
Mandatory injunction to remove obstruction.
