Easements Flashcards
Identify and briefly explain each of the four characteristics which a right must possess if it is to be an easement, as set out in In re Ellenborough Park.
There must be a dominant and a servient tenement.
An easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit.
The dominant and servient owners must be different persons.
The right claimed must be capable of forming the subject-matter of a grant.
Sub points for 4:
There must be a capable grantor.
There must be a capable grantee.
The right must be sufficiently definite.
The right must within the general nature of the rights traditionally recognized as easements.
The right must not impose any positive burden on the servient owner (eg Moncrieff).
The right must not deprive the servient owner of all beneficial proprietorship (Copeland v Greenhalf; Moncrieff; Kettel).
Explain the formalities for the express creation of legal easements in relation to registered land, using appropriate legal authorities.
Easements can be created expressly:
By express words. Normally, this means that the grant of the easement will be expressly set out in a deed of transfer of freehold ownership, or in a lease. This gives rise to registration requirements (see next slide).
By proprietary estoppel.
By statute. This usually occurs in relation to utilities providers (gas, water, electricity, telephone companies) to permit access for maintenance etc.
Estate:
Easements can only be granted by people who hold an estate in the land over which the easement is to operate. A legal easement requires the landowner to have a legal estate (ie freehold or leasehold).
Duration:
The requirement for the duration of a legal easement arises from s 1(2)(a) Law of Property Act 1925, s 27(4) and sch 2, paras 6(3), 7(1)(a) Land Registration Act 2002.
The provision that any other duration can only give rise to an equitable easement is in s 1(3) LPA 1925.
Mode of creation:
The ‘by deed’ (‘signed, witnessed, delivered’) requirement for legal easements is found in s 52(1) LPA 1925.
Explain the three general requirements for obtaining an easement by prescription, as well the specific requirements arising under:
a. The common law presumption from long user.
b. The Prescription Act 1832.
c. The doctrine of lost modern grant.
Easements can only be acquired prescriptively where:
1. The claim is made by one fee simple owner against another fee simple owner. A prescriptive claim against a tenant will fail. A tenant cannot acquire a right prescriptively against their own landlord or against another tenant who holds under the same landlord.
2. There is a continuous user. It is not clear how frequent the user must actually be.
3. The user has been as of right: nec vi, nec clam, nec precario.
The common law presumption from long user: It was presumed at common law that any user which began before time immemorial (which eventually became the year 1189) must stem from a valid grant before that date. The courts later presumed that any user for 20 years or more was indicative of user since 1189. This could, of course, be defeated by showing that the user did not take place in 1189.
The Prescription Act 1832: This is only available in relation to litigation which has already begun (until then, the right does not ‘fully’ exist). In such cases, the Act provides that evidence of user as of right and without interruption for 20 years cannot be defeated by showing that it began after 1189 (see s 2). If the easement is enjoyed for 40 years as of right and without interruption, then it will be deemed ‘absolute and indefeasible’ (s 2) unless the right is enjoyed by written consent/agreement or the servient owner’s capacity to grant an easement was limited by statute.
Lost modern grant: 20 years’ uninterrupted user as of right will be treated as evidence that a grant must have taken place at some point prior to those 20 years, and that the document containing that grant has since been lost.
What do Gray and Gray mean when they say that the law sometimes treats property in land as a responsibility?
Property as a responsibility (‘duty-laden allocations of social utility’; ‘the socially directed control of land use’ – an obligational approach to property). Land is now subject to a huge range of regulatory controls, eg in relation to urban planning and the conservation of natural resources, all requiring land users to behave in a particular way in relation to their land. On this reading, to ‘own an estate’ really just means to have some minimum of power over the land, with the state granting the owner rights to act in certain ways on the land in accordance with the public interest, as opposed to doing whatever they please. Landowners cannot simply change the use of their land as they wish, cannot simply paint buildings as they wish, destroy buildings as they wish, and so on; instead, the state regulates how all of this is to be done, and must often first give permission.
Consider also: Infrastructure Act 2015
Briefly explain the effects of obtaining an easement (whether expressly, impliedly, or prescriptively) on
a. The owner of the dominant tenement.
b. The owner of the servient tenement.
c. A purchaser of the dominant tenement.
d. A purchaser of the servient tenement.
e. Society more widely.
a) an easement gives right to the dominant tenemant to do something on someone else’s land. Has the benefit of an easement
b) will now have the burden of an easement. Burden of having to allow someone else to exercise a right over their land
c) the buyer will now have the right of an easement, as an easement is attached to the land. Therefore, he also has the benefit of an easement
d) the buyer will be bound by the easement and thus have the burden of an easement as the easement is attached to the land
To what extent are easements best explained as a consequence of the law treating property in land as a responsibility?
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To what extent, if at all, do you agree that Gray and Gray’s notion of property as a responsibility justifies the availability of easements of others’ land?
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