Easements Flashcards
What is an easement?
A right attached to one piece of land that burdens another piece of land.
Types of easements
1) Utility easements
2) Private easements
3) Easements by necessity
4) Prescriptive easements
What is a utility easement?
The most common kind of easement is one that has been given in writing to a utility company or a city. Utility easements are sometimes described in a property deed or certificate of title as “those certain utility easements as set out and shown on the map and plat of record in such-and-such a book on page something-or-other.”
For example, the municipal water company may have an easement to run water pipes under your property. Your name is on the deed (you’re the title holder and the property owner), but the water company has the right to use a part of your property for its pipes.
What is a private easement?
A property owner may sell an easement to someone else— for example, to use as a path or driveway or for sewer or solar access.
What are easements by necessity?
Even if it isn’t written down, a legal easement can exist if it’s absolutely necessary to cross someone’s land for a legitimate purpose. The law grants people a right of access to their homes, for example
Four characteristics necessary for a valid easement:
- There must be a dominant tenement (a piece of land which has the benefit of the easement) and a servient tenement (a piece of land which is burdened by the easement).
- The dominant and servient tenement must be owned or occupied by different persons.
- The easement must accommodate the dominant tenement, i.e. it must benefit the land and not be merely a personal benefit to the owner.
- The right must be capable of being granted by deed in order to be recognised as an easement, and therefore (Re Ellenborough Park conditions)
Re Ellenborough Park conditions
(a) Must not be too wide or vague, i.e. it must be specific and capable of being defined (A “nice view” is subjective and therefore too vague, William Aldred’s Case; insufficiently specific description of area of land affect also, Chaffe v Kingsley).
(b) Must not deprive servient owner of possession - easements which have the effect of excluding a servient owner from possession of his own land will never be accepted as an easement.
Where the easement relates to storage and parking, which might have the effect of excluding the servient owner from his own land, the question is always one of degree and whether the right is compatible with the owner’s use of his land (i.e. it is OK to store goods on another’s land - provided it is not too much, London & Blenheim).
(c) It must not be a mere right of recreation and amusement (Mounsey v Ismay)
(d) The right must be within the general nature of rights capable of existing as easements and not just “permission” (which will amount to a license). A right to park a van failed, for example, because the claimant always moved his van when asked to do so by the servient owner and therefore only exercised his right as far as the owner permitted (Green v Ashco). Similarly, an easement to take water from an artificial pond depended on the cooperation of the owner to fill the pond, and therefore was not a right (Burrows v Lang).
How easements are created
- Express grant or reservation
- Implied grant or reservation on a sale of part
- Prescription
Examples of easements
1) Rights of way - Carter v Cole, where repair is needed neither owner is obliged to do the work but may do so if
they wish. Where dominant tenant decides to, must do so at own expense and is entitled to enter the servient tenement for the purpose.
2) Rights to light - cannot be a general claim for light over the whole piece of land, must be a specific window/light
(Colls).
3) Rights to water - general right to water in soil, but also to specific pipe/stream (Race v Ward)
4) Rights to drainage (Attwood v Bovis Homes).
5) Rights to air - no general right but a claim to air flowing in a specific channel can amount to an easement (Wong
v Beaumont Property)
6) Rights to support - general right not to pull supporting wall, etc, down but may let it fall down for lack of repair
(Jones v Pritchard).
7) Rights to use of facilities
8) Rights of storage
9) Rights of parking
What is an express easement?
An express easement is created by a deed or by a will. Thus, it must be in writing. An express easement is one that is affirmatively entered into through documented legal means.
What is an implied easement?
When no document or agreement has created an express easement, an easement right may still be in existence (or “implied”) by a situation or circumstances. Generally, these types of easements are applicable to parcels of land that were once part of a larger parcel of land, such as a three-acre lot split into six separate parcels.
To create an easement by implication, three requirements must be met:
The easement must be at least reasonably necessary to the enjoyment of the original piece of property.
The land must be divided (or “severed”), so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different new owners.
The use for which the implied easement is claimed must have existed prior to the severance or sale.
What is an express grant?
Express grant of an easement is when the grantor (owner of the burdened land) grants the grantee (owner who acquires the benefit) an easement. e.g. right of way.
You can make an express grant of an easement by deed or will.
What is an express reservation?
A reservation of an easement takes place when the grantor conveys (i.e. transfers by sale or otherwise) a parcel of property to another bu reserves to himself an easement over the property for some use.
Assume you own a nice piece of lakefront property. You don’t have enough time to make good use of the property, so you decide to sell it. However, you really like to kayak and fish and don’t want to give up your access. What can you do? You can reserve an easement in gross when you sell the property entitling you to personally use the property for fishing and launching your kayak.
Implied grant?
- Necessity - an easement which is so essential to the enjoyment of land that the land cannot be used without the easement (e.g. land that is inaccessible unless an easement permitting access is implied) - but does not apply where it is expressly stated that no right of access was being granted (Sweet v Summer).
- Common Intention - an easement can be claimed provided it can be shown that both parties intended that it should be granted (Cory v Davies)
- Wheeldon v Burrows Rule - provides that a quasi-easement, where an estate owner derives a benefit from one piece of land in favour of another, but he owns both - may become an actual easement if the dominant and servient land fall into separate ownership. The quasi easement will only be granted as an implied legal easement and pass to a purchaser/tenant where it is:
(a) “continuous and apparent” - in use at the time and visible on inspection (Borman v Griffiths)
(b) “necessary to facilitate the reasonable enjoyment” of the land sold (Wheeler v JJ, alternative, “more convenient” path not implied as not necessary)
(c) “in use” by the owner at the time of the sale
Implied reservation?
Reservation of an easement can only be implied in two situations:
- Necessity - an easement which is so essential to the enjoyment of land that the land cannot be used without the easement (e.g. land that is inaccessible unless an easement permitting access is implied) - but does not apply where it is expressly stated that no right of access was being granted (Sweet v Summer).
- Common Intention - an easement can be claimed provided it can be shown that both parties intended that it should be granted (Cory v Davies)
