Easements Flashcards
What is an easement?
A non-possessory right to use or restrict use of another’s land for the benefit of one’s own land.
What are the four essential characteristics of an easement (Re Ellenborough Park)?
Two tenements (dominant & servient), must accommodate dominant land, owned by different people, capable of forming the subject matter of a grant.
What is the dominant tenement?
The land that benefits from the easement.
What is the servient tenement?
The land that is burdened by the easement.
When will a right not qualify as an easement?
If it is too vague, grants exclusive possession, or is purely personal or recreational.
Case where exclusive use prevented an easement?
Copeland v Greenhalf – too extensive a use.
Which case allowed sport/recreational easements?
Regency Villas v Diamond Resorts – sport/leisure benefits upheld.
Name 3 types of recognized easements.
Right of way, right to light, right of support.
Case confirming easement for light?
Scott v Goulding [1972].
How can easements be acquired?
Statute, express grant/reservation, implied grant/reservation, prescription, estoppel.
What is required for an express easement?
Written deed that complies with statutory formalities.
Case supporting implied easement by necessity?
Wong v Beaumont [1965] – needed for intended use.
What are the key grounds for implied easements?
Necessity, common intention, non-derogation from grant, Wheeldon v Burrows rule (now LCLRA s.40), S.6 Conveyancing Act 1881 (now LCLRA).
When does non-derogation from grant arise?
Where a seller cannot frustrate the purpose of the sale (Connell v O’Malley).
What is prescription?
Acquiring easement by long, uninterrupted use.
What were the 3 pre-2009 methods of prescription?
Common law, lost modern grant, Prescription Act 1832.
What did the LCLRA 2009 change about prescription?
Created a single statutory regime; user must be ‘as of right’ for: 12 years (private), 30 years (State), 60 years (foreshore).
How are easements registered under the 2009 Act?
Via court order or application under s.49A of the Registration of Title Act 1964.
What are the elements of easement by estoppel?
Assurance or representation, reliance, detriment.
Key case for estoppel easement?
Crabb v Arun DC [1976].
When can an easement’s use become excessive?
When the dominant land’s use radically changes or burdens the servient land excessively (McAdams Homes v Robinson).
What are the ways to extinguish an easement?
Statutory extinguishment (LCLRA s.39 – 12 years’ non-use), express or implied release, abandonment, unity of possession and title.
What is needed to prove abandonment?
Non-use + intention to abandon (Carroll v Sheridan).
Where are registered easements recorded?
On the folio under s.82 ROT Act 1964.
What section makes unregistered easements overriding interests?
S.72 ROT Act 1964.
