Easements Flashcards
What is an easement?
An easement is a proprietary right to use land which belongs to somebody else.
Who is the grantee in an easement?
The grantee is the person who receives the benefit of the easement, and their land is the dominant tenement.
Who is the grantor in an easement?
The grantor is the person who grants the easement, and their land is the servient tenement.
What are legal easements?
An easement is capable of being a legal interest in land if it fulfills the requirements as to duration.
What are equitable easements?
If an easement is not granted for the equivalent of a freehold or leasehold estate, it can only be equitable.
What are positive easements?
Positive easements allow a holder to use the servient land in another way.
How are negative easements treated by the court?
Negative easements are treated with caution by courts and only rights to light, air, and support (e.g dividing wall) are recognized.
What is a grant in the context of easements?
A grant exists where C, a landowner, sells or leases part of C’s land to D, and grants to D an easement over the land which C has retained.
What is a reservation in the context of easements?
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.
What is prescription in relation to easements?
An easement can be claimed by prescription if it has been exercised continuously over land for at least 20 years, reasonably regularly, without force, secrecy, or permission.
What are the four essential characteristics of an easement according to the Capability Rules?
- There must be a dominant and servient tenement.
- The right must accommodate the dominant tenement (benefits any owner?)
- There must be no common ownership of the two tenements.
- The right must lie in grant:
a. granted by a capable grantor to a capable grantee
b. capable of exact description
c. judicially recognised (no new negative easements allowed)
What are the 3 disqualifying factors for an easement?
- No exclusive possesion
- No additional expenditure by the ST owner
- No permission
What is the ‘ouster principle’?
The ‘ouster principle’ is recognized in Batchelor v Marlow and asks if the servient owner has been deprived of reasonable use of the land.
What is the test of possession and control?
The Moncrieff v Jamieson test asks whether the servient owner retains ultimate possession and control of the servient land, subject to the reasonable exercise of the right.
How can easements be created?
Easements can be created expressly or impliedly.
How is an easement expressly created?
Set out in writing in the transfer deed or lease OR created as a separate deal
What are the requirements of a legal easement?
- must be for set period or forever
- must be created by deed (comply with s1 LP(MP)A)
- must be substantively registered (benefit noted in Property Register of DT and burden noted in the Charges register of the ST)
How are failed legal easements turned into equitable easements?
- in writing
- include all expressly agreed terms
- signed by both parties
How are easements for inherently equitable easements created?
- made in writing
- signed by the grantor
What are the four ways easements can be created impliedly?
- Necessity.
- Common intention.
- The Rule in Wheeldon v Burrows.
- S 62 LPA 1952.
What are the requirements for creation by necessity?
- the existence of the right is essential to use the land at all
- originally just rights of way, but now includes rights of way via vehicles
rights of drainage, sewerage and supply of electricity are not necessary
What are the requirements for creation of an easement by common intention?
- the land was sold/leased for a particular purpose
- that purpose is known to both parties
- the easement is essential to achieve that common purpose
What are the conditions for the Rule in Wheeldon v Burrows to apply?
- grant only
- must have been enjoyed as a quasi-easement by the seller or LL - therefore common owner of the whole immediately before sale
- must be continuous and apparent
- must be necessary for the reasonable enjoyment of the DT
- must be in use by the common owner at the date of transfer or lease
What is the significance of S 62 LPA 1952?
It ensures that when someone buys or leases land, they receive the benefit of all existing easements affecting that land - upgrade effect
What are the conditions for implied creation under s62
- grant only
- there must have been prior diversity of occupation (although not always - Platt v Crouch)
- only applies to deeds and so only creates legal easements
What remedies are available for easement enforcement?
Remedies include:
- prohibitory injunctions
- damages in lieu of injunction,
- mandatory injunctions to remove obstruction
when is an properly created easement always enforceable?
it is always enforceable by the DT owner against the ST owner
How are implied legal easements enforceable?
they are enforceable as overriding interests, provided that:
- the easement is within actual knowledge of the new owner
- or it is obvious on a reasonable inspection of the land
- or it has been exercised within the year before the transfer of the land
What is required to ensure that express equitable easements are enforceable against subsequent ST owners?
Registered land:
- an easement will always be enforceable against the grantor but must be protected by notice in the charges register to be enforceable against a new owner
Unregistered land:
- same as above, but it must be protected by a Class D (iii) Land Charge at the Land Charges Register
How are implied equitable easements enforceable?
Same as for express equitable easements - therefore very unlikely they will be protected.
