Easements

Question 1

Essential characteristics of an easement. Case.

Answer 1

Re Ellenborough Park.

1. Dominant/servient tenement.
2. Accommodates dominant tenement.
3. Diversity of ownership/occupation.
4. Capable of forming subject matter of a grant.

Question 2

When will a right not accommodate the dominant tenement? 2 examples, 1 case.

Answer 2

1. If personal.

2. If benefits dominant tenement’s business - Hill v Tupper.

Question 3

Give 5 cases illustrating what may/may not be capable of forming the subject matter of a grant.

Answer 3

1. Not TV signal - Hunter v Canary Wharf.
2. Not view - Dalton v Angus.
3. Light, if specific aperture/sufficient for reasonable enjoyment - Colls v Colonial & Home Stores.
4. Can be shared - Wright v Macadam.
5. Can’t deprive servient of reasonable use/enjoyment - Copeland v Greenhalf.

Question 4

3 methods of creation of an easement.

Answer 4

1. Express grant.
2. Implication on sale of part/lease.
3. Prescription.

Question 5

What easements are implied on sale of part for a seller?

Answer 5

1. Easements of strict necessity.

2. Easements of common intention.

Question 6

What easements are implied on sale of part for a buyer?

Answer 6

1. Easements of strict necessity.
2. Easements of common intention.
3. Easements under Wheeldon v Burrows.
4. Easements under s62 LPA.

Question 7

What is the rule in Wheeldon v Burrows?

Answer 7

1. Apparent & continuous.
2. Necessary for reasonable enjoyment.
3. Used as quasi-easement by seller.

Question 8

What does s62 LPA state? What case amplifies its scope?

Answer 8

That existing easements will be implied into a deed. Under Wright v Macadam, a deed can transform a license into an easement.

Question 9

For common-law prescription, what must an easement be? 3 criteria.

Answer 9

‘As of right’ - without force, without secrecy, without permission.

Question 10

If an easement is ‘as of right’, what presumption is raised? Can it be rebutted?

Answer 10

Presumption of use since ‘time immemorial’, ie.1189. Can be easily rebutted by proof of date of creation.

Question 11

If the presumption of use since time immemorial is rebutted, what doctrine may apply?

Answer 11

Doctrine of Lost Modern Grant - legal fiction that says if 20 years’ continuous use, presumption that there was a grant, which is now lost.

Question 12

How does the Prescription Act 1832 protect easements?

Answer 12

Where an easement has been denied, or proceedings brought against the user, if there has been 20 years’ continuous (i.e. no interruptions of more than a year) use, then user can claim an easement.

Question 13

For registered land, how are easements protected?

Answer 13

1. Legal - registrable disposition, must be registered on charges register - s27 LRA.
2. Equitable - IARE, must be registered as notice on charges register - s32 LRA.

Question 14

What if it is a legal lease created before Oct 2003? Authority.

Answer 14

Has overriding status - Sch12, para9 LRA

Question 15

For unregistered land, how are easements protected?

Answer 15

1. Legal - bind the world.

2. Equitable - Class D(iii) land charge - s2(5) LCA.

Question 16

In what 2 ways can an easement be discharged?

Answer 16

1. Express release by deed.

2. Abandonment - Moore v Rawson.