Easements Flashcards
What happens if an easement is for an uncertain duration, like ‘for life?”
It is only capable of being equitable
Who is responsible for repairing/maintaining a right of way if an easement of this is granted?
Once a right of way exists, unless there is express stipulation in the grant, neither the servient nor dominant owner has an obligation to maintain or repair a right of way
What are the four essential characteristics of an easement?
1) Must be a dominant and servient tenement
- Dominant tenement has the benefit of the easement; servient has the burden of the easement
2) Must accommodate the dominant tenement
- The easement must benefit the dominant tenement by improving it or making its use more convenient in some way connected with the normal use of the property
- They don’t have to be immediately adjacent, but should be close enough to establish a connection between the two
3) Dominant and servient owners must be different persons
- Satisfied in landlord and tenant situations, where LL creates an easement in T’s favour to be exercised on LL’s retained land
4) Right claimed must be capable of forming the subject matter of a grant of an easement
What types of ‘subject matter’ can become an easement?
Easement cannot involve expenditure by servient owner
- Right to park can be an easement, but it must still allow reasonable use/enjoyment of the land for the grantor of the easement to be valid
- No general right to light, but it is a recognised negative easement + must be via a defined aperture (opening/hole; through a greenhouse as an example)
- Right to a view cannot be an easement
Where the right is too extensive/not the right type, only a licence is granted
Give an overview of the ways an easement can be created
1) Express grant or reservation– deed/contract - agreed between the parties
- Must be a deed for the easement to be recognised as legal
i) Must then be registered as a registrable disposition and takes effect at law once registered
- Equity can step in to recognise it as an equitable one instead if no deed, but correct formalities for contract in land have been met
2) Impliedly (on sale of part, where a larger parcel of land is sold) - can be impliedly granted for benefit of buyer or impliedly reserved for benefit of retained land
i) An implied easement on sale of part will automatically be a legal easement
3) Prescription
An easement of necessity can be implied on grant or reservation. Give some details of when this may arise
In very limited circumstances
It means that without the easement, the property being bought/retained cannot be used at all – no means of access other than the right claimed
Often relates to essential right of way
An easement arising out of common intention can be implied on grant or reservation. Give some details on when this may arise
Evidence of common purpose known to the parties when the sale was completed and right claimed is needed to fulfil the common purpose
Example - The client knew that the seller intended to continue to live in the house and therefore the seller’s easement of drainage would be necessary to give effect to the intended use of the seller’s retained land. The seller does not have to divert the drains.
A ‘Wheeldon v Burrows’ easement can arise impliedly by grant of land. Give some details of this type of easement
Quasi easements (one which meets all criteria for an easement, but the dominant and servient tenements are owned by the same party) exercised at time of sale by seller can be passed to buyer, subject to conditions being satisfied:
- The right must be continuous and apparent - Habitual enjoyment obvious from an inspection of land
- Must be necessary for reasonable enjoyment of land sold
Example - If you own a house and an annex and a path accessing the annex avoids the use of a busy road, you can’t really have an easement over the path; but, as the annex benefits from the right of way, it’s a quasi-easement
- The effect is to create a legal easement at time of sale if conditions met
How does s62 LPA 1925 work to imply an easement on grant of land?
Elevates a licence to a legal easement when a conveyance is made
Conditions (with example):
1) There needs to be an existing privilege (the freehold owner’s informal permission to erect the sign)
2) There needs to be diversity of occupation (the freehold owner owning the servient land and the tenant occupying the Property)
3) There needs to be a conveyance in writing (the transfer of the freehold to the tenant or the grant of a new lease)
What are the general requirements for an easement to arise by prescription?
1) The dominant owner can show the use as of right for 20 years or more
- As of right – means the use must occur without force, secrecy or permission
- Tolerance without objection does not count as permission
2) The use must be by one freehold owner against another
- Cannot arise if a landlord gives permission to a tenant
3) The use must be continuous
- Can aggregate current and previous owner’s use together
What is the effect of prescription, if proven?
Creates a legal easement
If the general requirements are proven, what are the three methods by which prescription can be used to create the easement?
Common Law
Lost modern grant
Prescription Act 1832
How does the common law method of prescription work?
Presumed that a user of 20 years or more, enjoyed continuously, as of right, is proof of use since time immemorial (1189)
Easily rebutted by evidence that shows it wasn’t used at some point since 1189 or that it couldn’t have been used or that dominant/servient tenements were vested in the same person
How does the lost modern grant method of prescription work?
Grant of easement presumed where use has been continuous, as of right for 20 years, on the presumption that there was a grant of the right at some time since 1189, but the deed of grant has been lost
How does the Prescription Act 1832 method work?
Can be used if dominant owner can prove uninterrupted enjoyment as of right for 20 years or more
20 years here counted backwards from date of court action and short interruptions are allowed, but interruptions over a year stop the time running and they must start the 20 years again
