Easements 2 (Reservation of E)

Question 1

Reservation of easement

Answer 1

If someone has reserved an easement, then the land they have sold is burdended bevause the seller is retaining / reserving some kind of use /easement over the sold property for themselves

Question 2

Reservation of an E - EXPRESS

Answer 2

can be created expressly by deed

Question 3

Reservation of an E - IMPLIED

Answer 3

NECESSITY

COMMON INTENTION

Question 4

Necessity

Answer 4

Sweet v Sommer 2004
> was retained land landlocked where access was possibly be demolishing a building on the sellers retained land? Court said demolishing a buildinf to facilitate access is NOT necessary

Adealon Proprietary LTD v Merton LBC 2007
> An easement of necessity where some of the surrounding land belongs to a third party? Court said they should argued to try and make some sort of easement to go through the 3rd party’s land BEFORE going for an easement of necessity over the sellers retained land

Question 5

Common Intention - Peckham v Ellison 2000

Answer 5

Local Authorities sold a No.15 building to Rich HOWEVER authorities did not expressly reserve a right of way of no.15

Authorities sold no.16 to Ellison

No.15 was sold by Rich to Peckham and Peckham’s argued that there was this right of way

Court said on these special facts they granted an easement here but are relaxing any rules or setting an precedence

Question 6

Enforceability of easements - Transferring the benefit and burden of existing easements

Answer 6

Sale of dominant tenement = benefit has to move

Sale of servient tenement = burden has to move

Question 7

Transfering the benefit of an exisiting easement to new dominant owner

Answer 7

s.62 will move and convey easement with land

s.62 applies to both grants and reservations in the context of enforceability only

Question 8

Transfering the burden of existing easement to new servient owner

Answer 8

If its an EXPRESS easement then it capable of being legal, created via document and s.27 then kicks and requires it to be registered –> AND if it is registered it would bind the new servient owner because it would appear on the charges register

HOWEVER if its and IMPLIED easement then it can be an overriding interest under schedule 3 para 3 of LRA 2002 –> thus it won’t be binding