Easements Flashcards
what is the definition of an easement?
property right which confers rights over neighbouring land
Questions to think of when answering easement question?
Is it capable of being an easement?
Has the easement been created?
What is the status of the easement?
What is the effect of the easement on third parties?
Re Ellenborough park criteria
- Must be a dominant and servient tenement
- Right must acomodate the dominant land
- Dominant and servient tenement in different ownership.
- Right capable of forming subject matter of a grant
London and Blenheim Estates
‘any other land’ too vague
Accomodating the land (proximity)
dominant land should be sufficiently close (Bailey v Stephenson)
Accomodating the land (normal use of land)
must be connected to normal use of land (confirmed in Regency Villas).
Accomodating the land (must not be purely personal or commercial advantage)
Hill v Tupper- under the guise of an easement was a monopoly.
Moody v Steggles- A right that benefits a business can still be an easement.
Platt v Crouch- mooring boats supported the business rather than being the business.
Accomodating the land (recreational use)
Re Ellenborough Park- cannot have a right to wander. Easement must be clear.
Dominant and servient land in different ownership
Roe v Siddons- must be diversity of ownership for occupation.
Right capable of forming subject matter of a grant
capable grantor and grantee
right must be definite (Hunter v Canary Wharf)
Right must be within general nature of rights that can be an easement
Regency Villas (positive action)
rights must require nothing more than mere passivity
Crow v Wood
positive action for walls and fences only applicable when dealing with livestock
Rights in the general nature of recognised easements
Dyce v Hay- easements must alter with mankind.
Extensiveness
Copeland- right was a claim to possession rather than an easement.
London and Blenheim- big car park so one car was not a claim to possession.
Mulvaney- can have an easement to cultivate but not a specific part of land.
Batchelor test
does the exercise leave servient owner with no reasonable use of the land?
Moncrieff test (Scottish)
whether the servient owner retains ‘possession and control’ of land subject to reasonable exercise of the easement.
Methods of creation
> Grant-no sale- owner gives a right to another owner (express).
Grant-sale- in a sale document, a right is given.
reservation- owner retains a right in land he sells (reluctance to imply).
Easement as legal (s.1 LPA)
Done by deed (s.52)
if not registered may be equitable (s.27)
Easement as equitable
if grantor only holds an equitable estate
duration not for required term
only a contract (s.2 LP(MP)A)
easement not registered
Implied easements
Necessity
Common intention
WHeeldon v Burrows
S.62 LPA
Necessity
Stirling Union- property must be unusable
Titchmarsh- inconvinience does not create a necessity
Common intention
Wong v Beaumont- easement to attach a ventilation system as the lease allowed them to use the land as a restaurant.
Wheeldon v Burrows
rule:
> seller used quasi-easement at time of purchase
> continuous and apparent
> necessary for the reasonable enjoyment of the land.
Wheeler v Saunders- convinient alternative route did not apply.
S.62 LPA
requirements:
> right capable of being an easement
> prior to conveyance, rights must already be in exercise
> conveyance
> Diversity of occupation
Is DoO needed?
Platt v Crouch- was continuous and apparent so no DoO needed.
Wood v Waddington- apllied Platt v Crouch. Need DoO if not continuous and apparent.
Effect of transfer of dominant easement
easement automatically passes on transfer of dominant land.
Transfer of servient tenement (unregistered)
legal easement- binding on all people
Equitable easemnent- must be registered as a land charge.
Transfer of servient tenement (registered)
s.29 LRA- registration
Dominant land- must be registered (s.27(2)(d) LRA).
must enter a notice into a register (s.38 LRA).
Equitable easemnts on transfer
Must be registered for priority
not overreachable or overriding interest
