Easements

Question 1

what is a dominant tenement?

Answer 1

The land to which the right is attached/ the land which benefits from the easement

Question 2

what is a servant tenement

Answer 2

the land over which the right is exercised.

Question 3

what is Profit a Prendre?

Answer 3

right to go onto someone else’s land and take something naturally occurring there and which is capable of ownership.

Question 4

Easements must satisfy criteria in what case?

Answer 4

Re Ellenborough Park [1956]

Question 5

what are the 4 criteria in Re Ellenborough Park [1956]

Answer 5

1. there must be a dominant and servant tenement
2. the easement must ‘accommodate’ the dominant tenement
3. dominant and servient tenements must be owned be different persons
4. the right must be capable of forming the subject -matter of a grant.

Question 6

what’s the authority for the right forming the subject matter of the grant? ventilation shaft?

Answer 6

Wong v Beaumont Property Trust Ltd [1965]

Question 7

case concerning courts recognising new or novel easements?

Answer 7

Regency Villas v Diamond Resorts [2018]

Question 8

Phipps v Pears [1965]

Answer 8

courts more likely to recognise a positive right than a negative right.

Question 9

case concerning Rights of way?

Answer 9

Borman v Griffith (1930)

Question 10

case concerning rights of water?

Answer 10

Rance v Elvin [1985]

Question 11

case concerning right to light?

Answer 11

Collis v Home & Colonial Stores (1904)

Question 12

case concerning right to air?

Answer 12

Cable v Bryant (1908)

Question 13

case concerning right to make noise

Answer 13

Lawrence v Fen Tigers Ltd [2014]

Question 14

What are the four ways to create or acquire an easement

Answer 14

1. Statute.
2. Express Grant or Reservation
3. Implied Grant or reservation
4. Prescription
5. Proprietary Estoppel

Question 15

easement by Statute?

Answer 15

public bodies will be given rights of way, access on land. acquired by statutory grant.

Question 16

easement by express grant or reservation?

Answer 16

easements that are expressly included in a deed or conveyance.

Question 17

what is an express grant?

Answer 17

where the vendor transfers land to the purchaser and also grants the purchaser an easement over the part a vendor retains.

Question 18

what is an express reservation?

Answer 18

where a vendor sells part of her land, but wants to reserve easements over the portion she sold for the benefit of the land retained.

Question 19

What is an Implied Reservation?

Answer 19

Easements that are not expressly included in a deed or conveyance and can arise by implication.

Question 20

What are the four methods of proving implied grant?

Answer 20

• Easements of necessity
• easements of common intention
• Wheeldon v Burrows Rule
• S. 6 of the conveyancing Act 1881

Question 21

What is Easement of necessity?

Answer 21

land sold to a purchaser without giving them any express means of access. property must be completely inaccessible or ‘landlocked’; not enough that there is an alternative route which is simply more convenient.

Question 22

What is an easement of common intention?

Answer 22

a grant of an easement implied into a conveyance to give effect to the common intention of the parties.

Question 23

What is the criteria for common intention in Stafford v Lee (1992)

Answer 23

i) was there a shared intention between the parties that the land be used in a particular Manner
ii) is the easement needed to give effect to this intention?

Question 24

what is the rule in Wheeldon v Burrows (1878)?

Answer 24

Right claimed over land must be

1) continuous and apparent
2) necessary for the reasonable enjoyment of the land granted
3) used by the grantor prior to and at the time of the grant.

Question 25

what is a Prescription?

Answer 25

Where a right resembling an easement (or profit) has been exercised for a long time, the court will presume easement.

Question 26

What are the requirements for a prescription?

Answer 26

Nec vi, nec clam, nec vicario.

1) without force
2) without secrecy
3) without permission

Question 27

What case concerns secrecy of underground drainage?

Answer 27

Union Lighterage Co v London Graving Dock [1902]

Question 28

What are the 3 methods of prescription?

Answer 28

Common Law
Lost Modern Grant
Prescription (Ire) Act 1858

Question 29

what criteria must be met for a common law prescription?

Answer 29

• must show a user since ‘time immemorial’

- court will accept evidence of 20 years uninterrupted use

Question 30

what is the criteria for a lost modern grant?

Answer 30

easements which have been enjoyed for more than 20 years are presumed to be the subject of a grant made after 1189 but which have been lost.

Question 31

case for lost modern grant?

Answer 31

Orme v Lyons [2012]

Question 32

what law governs the right of light?

Answer 32

section 3 Prescription Act 1858

Question 33

section 3 Prescription Act 1858 states?

Answer 33

the right to light must have been ‘naturally enjoyed for a period of twenty years without obstruction.’

Question 34

How can one achieve proprietary estoppel?

Answer 34

if the facts demonstrate appropriate representation from the servient owner, coupled with reliance and detriment by the dominant owner, coupled with reliance and detriment by the dominant owner which foster an expectation

Question 35

what case sets criteria for proprietary estoppel?

Answer 35

Crab v Arun DC [1976] Ch 179

Question 36

Walker v Bridgewood [2006] NSWSC

Answer 36

a right of way granted in 1901 granted carts, horses, carriages and wagons to passant repass.

Question 37

What are the methods for extinguishing an easement?

Answer 37

1. common ownership and occupation
2. express release
3. abandonment

Question 38

what are the options for abandonment?

Answer 38

a) there needs to be an unequivocal intention to abandon
b) mere non-use is not enough
c) non-use and estoppel