Easements Flashcards
what is a dominant tenement?
The land to which the right is attached/ the land which benefits from the easement
what is a servant tenement
the land over which the right is exercised.
what is Profit a Prendre?
right to go onto someone else’s land and take something naturally occurring there and which is capable of ownership.
Easements must satisfy criteria in what case?
Re Ellenborough Park [1956]
what are the 4 criteria in Re Ellenborough Park [1956]
- there must be a dominant and servant tenement
- the easement must ‘accommodate’ the dominant tenement
- dominant and servient tenements must be owned be different persons
- the right must be capable of forming the subject -matter of a grant.
what’s the authority for the right forming the subject matter of the grant? ventilation shaft?
Wong v Beaumont Property Trust Ltd [1965]
case concerning courts recognising new or novel easements?
Regency Villas v Diamond Resorts [2018]
Phipps v Pears [1965]
courts more likely to recognise a positive right than a negative right.
case concerning Rights of way?
Borman v Griffith (1930)
case concerning rights of water?
Rance v Elvin [1985]
case concerning right to light?
Collis v Home & Colonial Stores (1904)
case concerning right to air?
Cable v Bryant (1908)
case concerning right to make noise
Lawrence v Fen Tigers Ltd [2014]
What are the four ways to create or acquire an easement
- Statute.
- Express Grant or Reservation
- Implied Grant or reservation
- Prescription
- Proprietary Estoppel
easement by Statute?
public bodies will be given rights of way, access on land. acquired by statutory grant.
easement by express grant or reservation?
easements that are expressly included in a deed or conveyance.
what is an express grant?
where the vendor transfers land to the purchaser and also grants the purchaser an easement over the part a vendor retains.
what is an express reservation?
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.
What is an Implied Reservation?
Easements that are not expressly included in a deed or conveyance and can arise by implication.
What are the four methods of proving implied grant?
- Easements of necessity
- easements of common intention
- Wheeldon v Burrows Rule
- S. 6 of the conveyancing Act 1881
What is Easement of necessity?
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.
What is an easement of common intention?
a grant of an easement implied into a conveyance to give effect to the common intention of the parties.
What is the criteria for common intention in Stafford v Lee (1992)
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?
what is the rule in Wheeldon v Burrows (1878)?
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.
what is a Prescription?
Where a right resembling an easement (or profit) has been exercised for a long time, the court will presume easement.
What are the requirements for a prescription?
Nec vi, nec clam, nec vicario.
1) without force
2) without secrecy
3) without permission
What case concerns secrecy of underground drainage?
Union Lighterage Co v London Graving Dock [1902]
What are the 3 methods of prescription?
Common Law
Lost Modern Grant
Prescription (Ire) Act 1858
what criteria must be met for a common law prescription?
- must show a user since ‘time immemorial’
- court will accept evidence of 20 years uninterrupted use
what is the criteria for a lost modern grant?
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.
case for lost modern grant?
Orme v Lyons [2012]
what law governs the right of light?
section 3 Prescription Act 1858
section 3 Prescription Act 1858 states?
the right to light must have been ‘naturally enjoyed for a period of twenty years without obstruction.’
How can one achieve proprietary estoppel?
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
what case sets criteria for proprietary estoppel?
Crab v Arun DC [1976] Ch 179
Walker v Bridgewood [2006] NSWSC
a right of way granted in 1901 granted carts, horses, carriages and wagons to passant repass.
What are the methods for extinguishing an easement?
- common ownership and occupation
- express release
- abandonment
what are the options for abandonment?
a) there needs to be an unequivocal intention to abandon
b) mere non-use is not enough
c) non-use and estoppel
