Easements Flashcards
Define easements
The right of a landowner to enjoy a limited use of neighboring land, e.g a parking spot.
They can be positive through allowing someone to act on another’s land, i.e upkeeping it, but also negative through preventing another from acting on their own land, e.g mandatory injunctions to prevent unlawful actions such as water damage.
What is the essential feature of an easement?
The need for 2 pieces of land.
The dominant land to which the benefit of the easement is attached, servient land over which the easement is exercised.
Outline the 4 main characteristics of an easement set out by Re Ellenborough Park [1955]
- There must two distinct areas of land –> dominant & servient
- The dominant & servient land must be owned by two different people
- The easement must accommodate the dominant land
- The right must be capable of forming the subject matter of a grant
Explain the first requirement - there must be dominant & servient land
Dominant land has the benefit of the easement, which is fixed to the land when created.
Servient has to ‘suffer’ the easement, e.g the parkland in Re Ellenborough Park [1955]
The purpose of this requirement is to limit who can have rights over a plot.
Explain the second requirement - the dominant land must be owned by two different people
If a landowner owns dominant & servient land, there’s no need for an easement.
This is as their ownership provides the right to use the servient land.
Explain the third requirement - the dominant land must be accommodated
The benefit should accrue (when a sum of money is recieved in increasing amounts) for the time of being a dominant land, not bestow a personal advantage on the owner, e.g Hill v Tupper [1863] when the courts held that Mr Hill’s easement to rent out boats on the canal amounted to a personal commercial advantage, not a property right as the land didn’t actually belong to him.
Explain the fourth requirement - the right must be capable of forming the subject matter of the grant
An easement must be granted by deed by a grantor to guarantee the necessary capacity of land to enjoy.
In terms of how the servient land is affected, the following elements prevent a burden placed upon the land:
- Certainty in the scope of a grant.
- The requirement that the right places no positive burden on the servient owner.
- Limitations on new easements.
- Ouster principle - prohibits rights which excludes the servient owner / amount a claim to joint ownership.
Explain the first subject matter of the grant - certainty in the scope of a grant
Proprietary rights must be clearly defined, specifically what burden servient land is subject to & what rights they submit.
This burden could be no general right to a view, e.g Hunter v Canary Wharf [1997] with an interrupted TV signal.
Explain the second subject matter of the grant - positive burden on the servient owner
An easement doesn’t typically require the servient owner to do anything.
They are only required to exercise their rights without interference.
They are not required to keep the roads / drains in repair akin to Duke of Westminster v Guild [1985]
Explain the third subject matter of the grant - limitations on new easements
New forms of easements may be needed to reflect new lifestyles, e.g protecting the weather in Phillips v Pears [1965].
Explain the fourth subject matter of the grant - the ouster principle
Prohibits rights which excludes the servient owner / amount a claim to joint ownership.
Copeland v Greenhalf [1952] - a claim to park & store cars failed as the court was of the view that it constituted exclusive / joint ownership.
Capable grantor - an appropriate estate holder in land out of which the easement is granted.
Capable grantee - dominant tenement owner must be legally component to receive grant (freeholder / leaseholder
How can an easement be acquired by the dominant owner?
Express
Implied
Presumed grant established by a long user
Statutes, e.g Access to Neighboring Land Act 1992 / Party Walls Act 1996 in which rights are granted to enter neighboring lands and carry out repair and building works.
Explain an express grant (1st requirement of an easement acquired by the dominant owner)
A legal easement must be granted by deed
If the easement with registered land is created after the 13th of October 2003, the deed must be registered under the Land Registration Act 2002
The easement’s benefit must be recorded in the property’s register of dominant land with the easement’s burden being entered upon the servient land’s charge register
Explain an implied grant (2nd requirement of an easement acquired by the dominant owner)
An easement can also be acquired through implication, usually in circumstances where the land is subdivided by the sale of one or more plots.
Easements can be implied through
i) Easements of necessity - where land becomes landlocked upon the disposal by an owner of part of their land, e.g an owner sells his back garden leaving it with no right to access the public road, e.g Walby v Walby [2012]
ii) Intended easements - there are about three categories for this circumstance. (1) implication is intended in question as it’s necessary for the enjoyment of expressly conferred easements (2) when it’s necessary to give effect to the common intention of parties that an easement should be implied, e.g Wong v Beaumont Property Trust Ltd [1965] (3) the parties intention is that the right itself should be granted as a matter of necessary intereference, e.g R v Webb’s Lease [1951]
iii) Wheeldon v Burrows rule - on the grant by the owner of a tenement or part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements) / Only certain rights are capable of becoming easements under the rule in Wheeldon v Burrows: (i)the right must be enjoyed at the time of the disposal of the dominant land (ii)the right claimed must be ‘continuous and apparent (iii)the right claimed must be reasonably necessary for the reasonable enjoyment of the dominant land.
iiii) operating s62 of the Law of Property Act 1925 –> Only certain rights are capable of becoming easements under the rule in Wheeldon v Burrows:(i)the right must be enjoyed at the time of the disposal of the dominant land;(ii)the right claimed must be ‘continuous and apparent’;(iii)the right claimed must be reasonably necessary for the reasonable enjoyment of the dominant land, e.g Wright v Macadam [1949]
Explain easements of necessity
Arise in limited circumstances where land becomes landlocked upon the disposal by an owner of part of their land. Thus, for instance, if an owner sells his back garden leaving that land with no express right to access the public road, a presumed easement of necessity will arise to enable the new owner to pass over the seller’s retained land to reach the public road.
Explain intended easements
Fall into at least three categories:
- Where the implication is intended from the right in question because it is necessary for the enjoyment of an expressly conferred easement, e.g right to water such as a river.
- Circumstances of a grant where it is necessary to give effect to the common intention of the parties that an easement should be implied, e.g Wong v Beaumont Property Trust Ltd [1965]
- The parties’ intention that the right itself should be granted as a matter of necessary inference, e.g Re Webb’s Lease [1951]
Explain implying easements (not reservations) under the rule of Wheeldon v Burrows [1879]
Operates upon the disposal of part of land when certain rights enjoyed by the part sold or leased (which becomes the dominant land) over the land retained (which becomes the servient land) mature into easements.
Whilst the land is in common ownership, the rights cannot be classified as easements in view of the common ownership of the dominant and servient land.
At this stage, the rights are sometimes referred to as quasi-easements. It is clear that the rule will not create an implied reservation.
Only certain rights are capable of becoming easements under this rule:
i) the right must be enjoyed at the time of the disposal of the dominant land
(ii) the right claimed must be ‘continuous and apparent
iii) the right claimed must be reasonably necessary for the reasonable enjoyment of the dominant land.
Explain s62 of the Law of Property Act 1925
Acts as a word - saving provision when it is unnecessary to any physical features forming part of the land, including buildings, or to any ‘liberties, privileges, easements, rights and advantages whatsoever’.
This has proven to be controversial as it’s been interpreted to operate in particular circumstances to pass not just existing easements but to effectively upgrade a mere personal permission to a proprietary interest in the form of a fully-fledged easement, e.g Wright v Macadam [1949]
Explain presumed grant prescriptions
May be presumed as a result of long user through the doctrine of prescription. Prescription recognizes that long-established de facto enjoyment of the limited use of the land of another should be accorded legal status.
Outline the three routes to prescription periods
- First, at common law a prescriptive right can be claimed on proof of user of a right since time immemorial, which is accepted as 1189. A rebuttable presumption also arises at common law if 20 years’ user can be proved. However, this presumption is easily rebutted if factually the user could not have commenced by 1189, for example because of the age of the building upon the dominant land.
- Secondly, the Prescription Act 1832 provides two alternative routes to claim an easement by prescription which try to overcome some of the problems arising from common law prescription. The first route prevents a servient owner from disputing common law prescription where long user can be proved for a period of at least 20 years. The second route provides that a positive claim to a prescriptive right can be made after an extended period of 40 years’ user (or 20 years’ user of a right to light). In each case, the user must immediately precede the commencement of the action claiming the right.
- Thirdly, at common law the doctrine of lost modern grant requires proof of user for a period of 20 years to establish a fiction that a grant was made but has been lost.9.54Common law prescription based upon user sin
Define ‘as of right’ status in relation to easements
Must appear that the dominant owner used the right because of the fiction of the grant by the servient owner reinforced by the continued acquiescence of the user by the servient owner
Outline the benefits of registering an easement under the Land Registration Act 2002
i) Easements that are protected by registration will bind a purchaser (LRA 2002, s 29(2)(a)). There is thus an incentive to register an easement.
ii) Easements (whether legal or equitable) created before 13 October 2003 (the date the LRA 2002 came into force) which are overriding interests, although not registered, will continue to override (LRA 2002, Sch 12, para 9).
iii) Thus, a dominant owner (as at 13 October 2003) will continue to be able to assert his or her easement against a subsequent owner of the servient land.(iii)An express easement created after 13 October 2003 must be created by deed and registered to take effect as a legal easement (LRA 2002, ss 25 and 27 and Sch 2).
iv) An equitable easement created after 13 October 2003 can no longer take effect as an overriding interest in its own right. An equitable easement might conceivably qualify as an overriding interest under Schedule 3, paragraph 2 of the LRA 2002 when the dominant owner can establish actual occupation as opposed to mere use. However, such proof may be an uphill struggle and thus the dominant owner of an equitable easement is well advised to register to avoid a lack of registration defence.
v) An implied or presumed easement arising after 13 October 2003 will override unless:–the right is not within the actual knowledge of a purchaser or other disponee and the right would not have been obvious on a reasonably careful inspection of the servient land; or–the dominant owner can prove that the easement has been exercised during the period of one year ending with the day of the sale or other disposition
Outline the impact of easements
It is not easy to lose an easement.
As a legal interest in land it enjoys the permanence of property.
Outline the rule criteria for Wheeldon v Burrows rule criteria
Only applies to acts which are:
i) Continuous and apparent, i.e enjoyed over time and discoverable.
ii) Reasonably necessary for enjoyment
iii) Exercised prior to and at the date of transfer
Benefit of any prior use of that land for vendor’s convenience can now be enjoyed by the purchaser
Before the transfer, there was no difference in ownership between the two plots
Outline easement reform recommendations
Abolition of the ‘ouster principle’
Simplifying implied easements
Introducing a single method of prescription
Limiting the creative impact of s.62 of the LPA 1925
