Easements Flashcards
What are easements
- the right to make some llimited use of another’s land
- the right possessed by the owner of teh dominent land binds the servient land for the benefit of the dominant land
- they are a property right = s.1(2)(a) LPA 1925
Substantive requirements of an easement
Re Ellenborough Park
1. ther emust be dominant and servient land
2. it must accomodate the dominant land = propinquity [Bailey v Stephens] + Benefit [there are different tests]
3. the dominant and servient land must be owned by different people
4. the easement must be capable of forming the subject matter of a grant
4th substantive requirement of an easement
the easement must be capable of forming the subject matter of a grant
a. capable grator and grantee
b. sufficiently certain right
c. right must be within the rights recognised as an easement
d. not be purely negative [Phipps v Pears]
e. cannot impose positive obligations on the servient owner [Rance v Elvin = no obligation to repair]
f. cannot amount to exclusive possession = ouster principle
– this is what hill v tupper failed on
- paring right cases use the reasonable use test [Batchelor v Marlow] or whether the owner retained sufficient possessiona dn control [Moncreiff]
Recreational Easements
Re Ellenborough Park
- park was sold and houses near claimed to have an easement
- held to be an easement
- test = not just about whetehr it is more valuable but whetehr it was connected to the normal enjoyment of the land
+ Regency Villas
- furthered recreatinal easements
- timeshare owners on a holiday park claimed to have an easement to the shared facilities
- SC held it to be an easement
- but there was no positive obligations to maintain and repair the facilities
creation of an easement
- expressly - by grant OR reservation
- impliedly - by grant OR reservation
- by prescription
- by estoppel
- by statute
express creation of an easement
- incorporated into the deed of tranfer = s.52 LPA 1925
- registration = s.27(2)(d) LRA - for a legal easement
- by grant = serviet grants dominant an easement over servient’s land
- by reservation = dominant reserves an easement over servient’s land
implied creation
- the court can imply an easement where there is no express grant or reservation in a deed
- the type of document that you imply it into will effect whether the easement will be legal or equitable
routes for creation: - necessity = grant and reservation
- common purpose = grnat and reservation
- Wheeldon v Burrows [only grant]
- s.62 LPA 1925
necessity and common purpose
necessity = grant or reservation - more flexibility applied in Sweet v Sommer when land was not entireably inaccessible
common purpose = grant and reservation - Donovan v Randa = grantee must establish common intention + the easement must be necessary to esablish the purpose
w v b
Wheeldon v Burrows = only grants
Quasi-easements:
- when a landowner uses one part of their land for the advantage of another, provided tha areas are in different ownership
- must be for the benfit of the land at the time of transfer
- it must be continuous and apparent
- it must be necessary for the reasonable enjoyment of the land
- can be implied into the conveyance
s.62
s.62 LPA 1925 = only a grant
a permission can harden into a full conveyance = Wright v Macadam
- it must be a conveyance of land by deed = s.205(1)(ii)LPA 1925
- capable of being an easement [Re Ellenborough Park]
- advantage enjoyed at the dat eof covenyance
- diersity of occupation/ownership? - not a requirement following Wood
Modes of Protection
Notice = s.32 LPA 1925
Actual Occupation = sch 3 paragraph 2 LRA 2002
legal easements =
- express = binding if registered [s.27 LRA 2002] and by deed [s.52 LPA 1925]
- implied = sch 3 para 3 protects them
equitable easements =
- an easement will be equitable if there is no deed nor a enforceable contract [s.2 LPMPA 1989 + Walsh v Londsdale]
- if granted out of an eqitable estate
- if estate is legal but failed to comply with formalities
- by estoppel [Crabb v Arun]
