Easements

Question 1

What is an Easement?

Answer 1

Right to do something on another’s land

Question 2

What is a profit a prendre

Answer 2

Right to take something from another’s land

Question 3

Re Ellenborough Park - overview

Answer 3

Is a right capable of being an easement?

1. ) There must be a dominant and a servient tenement
2. ) The easement must accommodate the dominant tenement
3. ) The dominant and servient tenements must be owned or occupied by different people
4. ) The easement must be capable of forming the subject matter of a grant

Question 4

1.) There must be a dominant and a servient tenement

Answer 4

Dominant tenement - Land that takes the benefit of the right

Servient tenement - Land that takes the burden of the right

Question 5

Wall v Collins

Answer 5

Right cannot be in gross must be in appurtenant to land

Question 6

2.) The easement must accommodate the dominant tenement

Answer 6

The right must confer an advantage on the dominant land, not just a personal advantage

Question 7

Hill v Tupper

Answer 7

-Pleasure boats on a canal

NOT an easement as it benefitted business, not the land

Question 8

3.) The dominant and servient tenements must be owned or occupied by different people

Answer 8

A person cannot have an easement over his own land

Two tenements must not be owned and occupied by the same person - see Wheeldon

Question 9

Wheeldon v Burrows

Answer 9

If the owner owns dominant and servient land, a quasi-easement is formed which gives the potential for an easement to arise (if one of the properties is sold in the future)
Quasi-easement must be:
1.) Continuous and apparent
2.) Necessary for the reasonable enjoyment of the land sold
3.) Used at the time of the grant by owner

Question 10

Wright v Macadam

Answer 10

General right for easement of storage

Question 11

4.) The easement must be capable of forming the subject matter of a grant

Answer 11

There must be a capable grantor and grantee

The right must be within the nature of rights capable of being an easement - Moncrieff v Jamieson

Question 12

Moncrieff v Jamieson

Answer 12

Easement must not interfere such that the owner no longer retain possession of the land

Question 13

Express easements/ profits

Answer 13

An express legal easement/ profit must be:

• Attached to and therefore equivalent to a fee simple or term of years absolute LPA s1
• created by statute, by long use or by deed
• Expressly created easements must be registered 2002 LRA Sch 2 Para 7

Question 14

Enforceability of easements: purchaser of servient land

Answer 14

Registered Land:

• should be protected by registration and will, therefore, be a legal interest
• Cannot be an overriding interest

Unregistered Land:
-Whether legal or equitable, interest overrides

Question 15

Enforceability of easements: purchaser of dominant land

Answer 15

The benefit attaches to the land so automatically passes to the dominant owner

Question 16

What are the three ways an easement can be created?

Answer 16

1. ) Express grant or reservation
2. ) Implied grant or reservation
3. ) Prescription

Question 17

Express grant:

Answer 17

• Easement/profit created by the express words of the deed or registered disposition
• If grant is by deed -> legal, otherwise equitable

Question 18

Express reservation:

Answer 18

-Express reservation by the potential dominant owner over the land he has sold, for the benefit of the retained land

Question 19

Implied grant or reservation:

Answer 19

1. ) Necessity
2. ) Common intention
3. ) Implied under s62 Law of Property 1925
4. ) Rule in Wheeldon v Burrows

Question 20

1.) Necessity

Answer 20

Land which is landlocked - Nickerson v Barraclough

Question 21

Nickerson v Barraclough

Answer 21

“Unless some way implied a parcel of land will be inaccessible” - Implied grant for land not to be land-locked

Question 22

International Proprietary v Merton

Answer 22

Obiter: If locked by third parties, necessity applies too

Question 23

2.) Common intention

Answer 23

Woodman:
“it is essential that the parties should intend the subject matter of the grant be used in some definite or particular manner”

Question 24

Easements by prescription:

Answer 24

1. ) Common law presumption of long user
2. ) Under the fiction of lost modern grant
3. ) Under Prescription Act 1832

Question 25

Cory v Davis

Answer 25

Common intention showed an intended easement was implied

Question 26

London + Bleinham v Ladbrooke

Answer 26

Can store goods but not a disproportionate:

- “matter is one of degree “ a small coal shed in a large property is one thing

Question 27

Newman v Jones

Answer 27

Parking a car is an extension of a right of storge

Question 28

Attwood v Bovis Homes

Answer 28

If nature of burden changes, still bound unless substantial increase (where the court might have ruled differently)

Question 29

Peacock v Custins

Answer 29

Only relates to land mentioned in the conveyance