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Easements Flashcards

1
Q

Easements

Definition

A

The right to use/enjoy (or the right indirectly to restrict the use/enjoyment) of land belonging to someone else

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2
Q

Legal Easements

A

Easements granted for equivalent to f/h or l/h term ​- (S1(2)(a) LPA 1925)

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3
Q

Equitable Easements

A
  • s.1(3) LPA 1925 – all interests in land which are not legal estates or interests take effect in equity only
  • Easement won’t be legal if:
    • Fails on formalities
    • Parties deliberately enter contract to create legal easement in future
    • Granted for uncertain period
    • Grantor has equitable estate
  • Easements for an uncertain term
  • Estate contracts - (deliberately created estate contracts AND ‘failed’ legal interests: equitable lease; equitable easement; equitable mortgage)
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4
Q

Formalities

Expressly Granted Legal Easements

A
  • s52 LPA; S1 LP(MP)A - Legal interests must be granted by deed:
  • s27 LRA 2002 - and be substantively registered if servient land is registered
  • If servient land is unregistered, legal interests bind the world
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5
Q

Formalities

Expressly Granted Equitable Easements

A
  • Equitable easements generally must:
  • comply with s2 LP(MP)A (though easements for uncertain term need only comply with s53(1)(a) LPA))
  • and be protected by s32 Notice if land is registered, otherwise purchaser for value takes free – s29 LRA
  • If land is unregistered, protect by D(iii) or C(iv) Land Charge,
  • s4(6) LCA 1972 - otherwise purchaser takes free
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6
Q

Enforcement of easements by new dominant owner

Easements

A
  • s62 LPA 1925 – when land changes hand everything that counts as land changes hands, e.g. rights of way etc
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7
Q

Reservation

Easements

A
  • Land owner reserves a right for themselves over the land he has sold or let
  • Strict construction by the courts
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8
Q

St Edmundsbury & Ipswich Diocesan Board of Finance v Clark (No 2) [1974]

Strict construction of reservations

Easements

A
  • Strict construction of reservations (land owner has ability to reserve exactly what they want so assumed to have done it)
    • CoE owned church, churchyard, rectory and grounds. Access across rectory grounds. 1945 – rectory sold off and reserved right of way through rectory gardens to the church. Didn’t make it clear if by foot or by vehicle. Clark, new owner of rectory, claimed was on foot only. Provided issues for weddings and funerals. Court looked at land and at beginning of drive were 2 stone posts 4 feet apart and so they construed could only have been on foot as too narrow for a car.
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9
Q

Cordell v Second Clanfield Properties Ltd

Strict construction of reservations

Easements

A
  • Strict construction of reservations (land owner has ability to reserve exactly what they want so assumed to have done it):
    • Person selling land reserved right of way in hope would provide access to reserved land which could be developed. At time of reservation was 12 feet wide. Went back later and asked for a further 8 feet. Court refused as were in a position to reserve what they needed at the time.
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10
Q

Attwood v Bovis Homes [2000]

Strict construction of reservations

Easements

A

Land owner not allowed to change the burden substantially

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11
Q

Massey v Boulden [2002]

Strict construction of reservations

Easements

A

Right of way cannot be used substantially for another purpose

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12
Q

Grant

Easements

A

Land owner creates a right in favour of a new owner/tenant of part of land, over his retained land

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13
Q

Re Ellenborough Park [1956]

Essential Characteristics of an easement

Easements

A
  1. There must be a Dominant and Servient tenement
  2. Right must accommodate Dominant tenement
  3. There can be no common ownership
  4. Right claimed must lie in Grant
  • Square in London with shared garden. Surrounding owners each had a right to the garden. During the war, garden was requisitioned.
  • Was the owner’s right to access an easement? If so, would be entitled to compensation from War Office for loss of proprietary right. Court held it was a legal easement on grounds of above characteristics.
  • All criteria must be met or don’t have an easement
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14
Q

London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]

There Must be a Dominant and Servient Tenement

Easements

A

There must be 2 identifiable pieces of land; one which benefits the exercise of the right (dominant tenement) and one which is burdened by its exercise (servient tenement)

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15
Q

Hawkins v Rutter [1892]

There Must be a Dominant and Servient Tenement

Easements

A

An easement can’t exist on gross – has to be dominant and servient

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16
Q

Hill v Tupper [1863]

Right must benefit the Dominant Land

Easements

A
  • Right must Benefit the dominant land itself:
    • Lease of property on canal bank granted by proprietor’s of Basingstoke Canal Navigation. Lease included right to hire out boats to use on the canal. Landlord of a pub near the canal allegedly interfering with this by putting his own boats on canal and taking business away. Leaseholder claimed there was an interference with an easement and sought an injunction. Court rejected and said wasn’t an easement and said putting boats on the canal was not sufficiently connected to the land, but to the benefit of his business.
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17
Q

Moody v Steggles [1879]

Right must benefit the Dominant Land

Easements

A
  • Right must Benefit the dominant land itself:
    • Right to an advertising sign on someone else’s premises. Dominant tenement was a pub down side of a street and couldn’t be seen from main road as servient tenement obscured it. Dominant tenement hung an advertising sign on servient tenement’s building and said it was an easement as connected to land. Court agreed – dominant tenement had been sold as a pub, always used as a pub, and use of the land was inextricably connected to business and land itself. Right to hang sign accommodated dominant land.
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18
Q

Pugh v Savage [1970]

Right must benefit the Dominant Land

Easements

A
  • Proximity – 2 tenements must be sufficiently proximate for the dominant land to be benefitted by the right.
    • Right of way over 1 field to get to another. Right of way benefitted dominant tenement even though dominant tenement didn’t adjoin servient tenement.
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19
Q

Bailey v Stephens [1862]

Right must benefit the Dominant Land

Easements

A

you cannot have a right of way over land in Kent appurtenant to an estate in Northumberland

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20
Q

Roe v Siddons [1888]

No common ownership of dominant and servient tenements

Easements

A
  • A person cannot have an easement over his own land. Any rights that a person exercises over one part of his land for the benefit of another part of his land are natural incidents of ownership. Such rights are known as quasi-easements; they are capable of becoming easements on division of ownership.
  • It is possible for easements to exist where one person owns both pieces of land, but has leased one to another.
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21
Q

Right claimed must lie in grant

Easements

A

Three aspects:

  1. Need capable grantor and grantee
  2. Right must be sufficiently definite – have to be able to describe sufficiently and unambiguously what you are claiming
  3. Right must be judicially recognised or analogous to a recognised easement
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22
Q

Need Capable Grantor and Grantee

Right claimed must lie in grant

Easements

A
  • Must have Estate in land (legal or equitable)
  • Must have Legal capacity to grant interest
  • Grantor and grantee must have separate legal personalities – LPA 1925, s1(6) and s22.
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23
Q

Bland v Moseley [1587]

Right must be sufficiently definite

Right claimed must lie in grant

Easements

A
  • Right must be sufficiently definite – have to be able to describe sufficiently and unambiguously what you are claiming
    • Right to a view couldn’t be awarded as too ill-defined – does view have to be unchanging? Can nobody build etc?
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24
Q

William Aldred’s Case [1610]

Right must be sufficiently definite

Right claimed must lie in grant

Easements

A

No right to enjoy a scenic view

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25
Q

Harris v de Pinna [1886]

Right must be sufficiently definite

Right claimed must lie in grant

Easements

A

No right to privacy

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26
Q

Borman v Griffith [1930]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A

Rights of way

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27
Q

Colls v Home & Colonial Stores Ltd [1904]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A

Rights of Light

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28
Q

Race v Ward [1855]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A

Rights to water in a defined channel

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29
Q

Wong v Beaumont Property Trust [1965]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A

Rights to Air in a Defined Channel

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30
Q

Dalton v Angus & Co [1881]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A

Rights to Support

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31
Q

Attwood v Bovis Homes [2001]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A

Rights to drainage and other rights of ‘pipeline’

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32
Q

Scott-Whitehead v National Coal Board [1987]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A

Rights to Pollute a River

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33
Q

Sturges v Bridgman [1879]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A

Rights to Create a Nuisance

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34
Q

Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another [2018]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A

Rights to use sporting and leisure facilities such as golf course, tennis court, swimming pool

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35
Q

Phipps v Pears [1965]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A

No new negative easements

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36
Q

Hunter v Canary Wharf [1997]

Right must be judicially recognised

Right claimed must lie in grant

Easements

A
  • When Canary Wharf development was being built residents of surrounding areas didn’t want it to happen. Claimed Canary Wharf Tower interrupted their TV signal and claimed they had a right to a TV signal via prescription/long use. Court said it was not a recognised easement and said that it was negative (restricted right to build) and so was rejected.
37
Q

Regis Properties v Redman [1956]

Disqualifying factors which may make a potential easement a licence

Easements

A
  • Servient owner must not incur additional compulsory expense
    • servient land suffers the easement, but not the owner – right claimed as an easement was a right to hot water, which would have caused servient tenement extra expense.
38
Q

Jones v Pritchard [1908]

Disqualifying factors which may make a potential easement a licence

Easements

A
  • Servient owner not obliged to do or spend anything.
    • Not obliged to pay for repairs on right of way, but dominant owner must be allowed onto the land to carry out repairs at own expense.
39
Q

Rance v Elvin [1985]

Disqualifying factors which may make a potential easement a licence

Easements

A
  • As long as servient owner can recover dominant owner’s share, can still be an easement.
    • ​Easement for water supply claimed. Servient owner claimed couldn’t exist as an easement as meter was on his land and he had to pay the water bill. Right, therefore, failed as easement because of rule in Regis Properties v Redman. Court rejected as above.
40
Q

Green v Ashco Horticulturalists [1966]

Disqualifying factors which may make a potential easement a licence

Easements

A
  • Must be exercisable as of right –
    • No need to ask for permission every time you want to do something. Dominant owner moving van every time servient owner wanted to park. Therefore, was a licence.
41
Q

Grigbsy v Melville [1972]

Right Must not amount to Exclusive Possession

Disqualifying factors which may make a potential easement a licence

Easements

A

Right to store articles in a cellar was held not to be an easement as amounted to exclusive use of the servient tenement.

42
Q

Jackson v Mulvaney [2003]

Right Must not amount to Exclusive Possession

Disqualifying factors which may make a potential easement a licence

Easements

A

Right to use a garden was an easement.

Dominant owner claimed servient owner had interfered with this by creating a gravel driveway over part of the garden.

43
Q

London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]

Right Must not amount to Exclusive Possession

Disqualifying factors which may make a potential easement a licence

Easements

A
  • Can have easement for car parking as long as doesn’t exclude servient owner from the land.
    • Therefore, where right is to park 1 car in several spaces no problem. However, where 1 space and 1 car would be exclusive possession.
44
Q

Hair v Gillman [2000]

Right Must not amount to Exclusive Possession

Disqualifying factors which may make a potential easement a licence

Easements

A

Right to park in 1 of 4 space was an easement

45
Q

Batchelor v Marlow [2003]

Right Must not amount to Exclusive Possession

Disqualifying factors which may make a potential easement a licence

Easements

A
  • ‘ouster principle’: “is the servient owner left with any reasonable use of his land?”
    • Right to park 6 vehicles between 8.30 am and 6pm during working week held to be exclusive possession as right to park in dominant part of the day. Servient owner effectively excluded from his land at time he wanted to used it
46
Q

Moncrieff v Jamieson [2007]

Right Must not amount to Exclusive Possession

Disqualifying factors which may make a potential easement a licence

Easements

A
  • “does the servient owner retain possession and control of the land?”
    • Rarking dispute in Shetland Isles. Dominant owner had right to park and couldn’t do anything else on the land. Servient owner could do anything on the land apart from park. Therefore, had ultimate possession and control. Lord Scott has said “does the servient owner retain possession and control of the land?” If so, will be fine.
    • However, Batchelor is still binding
47
Q

Kettel v Bloomfold Ltd [2012]

Right Must not amount to Exclusive Possession

Disqualifying factors which may make a potential easement a licence

Easements

A
  • decision in Moncrieff applied obliquely despite acknowledging Batchelor was the test.
48
Q

Summary of Easements

Are rules on capability satisfied?

A
  • Re Ellenborough Park
    • Dominant and servient tenement
    • Accommodates the dominant tenement
    • No common ownership/occupation
    • Lies in grant
  • Disqualifying factors may mean a licence not an easement
    • Additional obligatory expense
    • Exclusive possession
    • Intermittent permission
  • RIGHT IS CAPABLE OF BEING AN EASEMENT…so move on to look at acquisition and protection
49
Q

Implied Acquisition

Easements

A
  • In circumstances where someone has not acquired an easement expressly, it may be possible for him to rely upon the easement having been implicitly acquired instead.
  • The ‘missing’ easement must be implied into a document:
    • transfer
    • lease
    • Contract
  • IF THERE IS NO DOCUMENT TO IMPLY THE EASEMENT INTO, THERE CAN BE NO IMPLIED EASEMENT!!
50
Q

4 key methods of implied acquisition:

A
  • Necessity (grant and reservation)
  • Common intention of the parties (grant and reservation)
  • Wheeldon v Burrows (grant only)
  • LPA 1925, Section 62 (grant only)
51
Q

Manjang v Drammeh [1990]

Implied by Necessity

Easements

A
  • No easement of necessity will be inferred if there is some other means of access to the land, even if difficult and inconvenient.
  • Claimed right of way and court refused because claimant had alternative access by sailing a boat across the river.
52
Q

Adealon v Merton Council [2007]

Implied by Necessity

Easements

A
  • May be possible for a right of way exercised over the servient land to be implied out of necessity.
  • Claimant bought land between a road and a railway. Railway was converted to a trunk road. Wanted to build a service station but needed planning permission. Sold off some of his land near the minor road and failed to get right of access. Didn’t get planning permission so didn’t have access from either road. Asked for easement to be implied by necessity on land he’d sold off. Court refused to do so as he should have reserved it specifically.
53
Q

Pryce v McGuinness [1966]

Implied by Necessity

Easements

A

An easement will not be applied out of necessity merely because it can be highly advantageous to the dominant tenement, e.g. drainage, sewerage, supply of electricity

54
Q

Adealon v Merton Council [2007]

Implied by Necessity

Easements

A
  • Doctrine of necessity is not founded upon public policy at all but by an implication from the circumstances.
55
Q

Wong v Beaumont Property Trust [1965]

Implied by Common Intention

Easements

A
  • An easement will be implied by common intention where land has been sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the easement sought.
    • Very specific common intention at date of grant
    • Particular easement essential for particular purpose
    • Tenancy leased for the purpose of being a restaurant only required an easement to connect to the landlord’s ventilation system. Without the ventilation system didn’t meet health and environmental standards so couldn’t be a restaurant.
56
Q

Pwllbach Colliery v Woodman [1915]

Implied by Common Intention

Easements

A
  • General intention to how the property will be used is not enough; the parties must intend for the property to be used in some definite and particular manner.
57
Q

Stafford v Lee [1992]

Implied by Common Intention

Easements

A
  • Claimant claimed right of way to landlocked woodland which he’d bought.
  • Claimed right of way by common intention of parties for construction traffic over adjoining land and then for domestic use afterwards
  • Granted as woodland surrounded by residential properties and transfer plan showed those properties and held by both parties that it was to be developed as residential land and that wouldn’t be possible without this access.
58
Q

Linvale Investments Ltd v Walker [2016]

Implied by Common Intention

Easements

A
  • Right of way of an emergency fire exit in a business park implied by common intention because necessary to give effect to the common intention to have the land fully occupied and used for maximum profit.
59
Q

Peckham v Ellison [2000]

Implied by Common Intention

Reservations

Easements

A

Common intention to reserve an easement will only be found If the facts are ‘not reasonably consistent with any explanation other than that of an implied reservation’.

  • Heavy burden of proof on person wishing to rely on an easement having been impliedly reserved by common intention.
60
Q

Yeung v Potel [2014]

Implied by Common Intention

Reservations

Easements

A
  • Courts very strict – reservation relating to renewal of gas pipes was not extended to laying of new pipes, as grantor had 2 chances to include such a reservation expressly in the original lease or subsequent deed of variation.
61
Q

Wheeldon v Burrows

Implied Acquisition

Easements

A
  • On sale or lease of part of land, grantee will receive all quasi-easements which are
    • Continuous and apparent AND
    • Necessary to the reasonable enjoyment of that land AND
    • Used at the time of the grant by the owner of the whole for the benefit of the part sold/leased
62
Q

Kent v Kavanaugh [2007]

Implied Acquisition

Easements

A
  • Rule in Wheeldon v Burrows can only operate on a sale or lease of part when, immediately prior to the sale/lease, there was a common owner and occupier of the whole.
63
Q

Pyer v Carter [1857]

Rule in Wheeldon v Burrows

Continuous and Apparent

Easements

A
  • To be apparent, the right must have been discoverable or detectable from careful inspection of the land by a person ordinarily conversant with the subject,
    • e.g. worn pathway evidence of right of way
64
Q

Sovmots Investments Ltd v SoS Environment [1979]

Rule in Wheeldon v Burrows

Continuous and Apparent

Easements

A
  • The rule in Pyer v Carter re easement being continuous and apparent is one of common sense, honesty and decency
65
Q

Moncrieff v Jamieson [2007]

Rule in Wheeldon v Burrows

Necessary to Reasonable Enjoyment of the Land

Easements

A
  • Easement is necessary to reasonable enjoyment of the dominant land if it is necessary for convenient and comfortable enjoyment of that land
66
Q

Wheeler v Saunders [1995]

Rule in Wheeldon v Burrows

Necessary to Reasonable Enjoyment of the Land

Easements

A

Where alternative access is just as convenient, the other route will not be deemed necessary and not implied as an easement.

  • Original owner of country property – enjoyed right of access over their land as quasi-easement, sold off part of their land, and buyer claimed right of way across land retained by the seller, even though there was an alternative use of access. Access had been used by original owner to access the property so was a quasi-easement – continuous, apparent, in use at time of sale etc. However, alternative access was just as convenient. Therefore, claim was NOT necessary for reasonably enjoyment of land.
67
Q

Millman v Ellis [1996]

Rule in Wheeldon v Burrows

Necessary to Reasonable Enjoyment of the Land

Easements

A

Where alternative access is a detour and dangerous it may be deemed necessary for enjoyment of the land and implied as an easement.

Same set up as Wheeler v Saunders

68
Q

Kent v Kavanaugh [2007]

Rule in Wheeldon v Burrows

In Use at Time of Grant

Easements

A

Right must have been used in the recent past by the common owner; a previous tenant won’t suffice

69
Q

Borman v Griffith

Rule in Wheeldon v Burrows

In Use at Time of Grant

Easements

A
  • Implied acquisition under the rule in Wheeldon v Burrows can operate upon an agreement to sell or lease, e.g. contract, as well as a sale/lease

If implied into a lease, will last for the duration of that lease only

70
Q

Implied under s.62 LPA 1925

Implied Acquistion

Easements

A
  • A conveyance includes all “easements, rights and advantages… appertaining to or enjoyed with the land”
  • ‘conveyance’ = Transfer and Lease by deed
  • 2 functions of s.62:
    • ‘ordinary’ operation of s.62: transfers the benefit of existing easements on transfer of land
    • ‘unintended’ operation of s.62: method of creating an easement! – a license can become an easement
71
Q

Wright v Macadam [1949]

Implied under s.62 LPA 1925

Implied Acquistion

Easements

A
  • Where land has been divided before the informal permission is given, the permission becomes an easement when the leased land is re-let or sold
  • L owns and occupies PLOT A
  • L also owns PLOT B - Already leased to T
  • During lease of Plot B, L allows T to use Plot A informally (e.g. for storage)
  • When new lease of Plot B granted (or when Plot B sold) informal permission becomes full legal easement
72
Q

Limitations on operation of s.62

Implied Acquisition

Easements

A
  • Must be a transfer/lease of legal estate by deed – doesn’t work on an equitable lease or contract for sale
  • Casual intermittent permission is not enough
  • Only applies to grants, not reservations
  • Can be excluded – LPA 1925, s62(4)
  • Must be diversity of occupation when the right was granted UNLESS the right was continuous and apparent (Platt v Crouch)
73
Q

Sovmots Investments v SoS for Environment [1979]

Implied under s.62 LPA 1925

Diversity of Occupation

Implied Acquistion

Easements

A
  • S62 only operates where there is diversity of occupation at the very beginning – must have been a division of occupation before permission was granted.
74
Q

P & S Platt Ltd v Crouch [2004]

Implied under s.62 LPA 1925

Diversity of Occupation

Implied Acquistion

Easements

A
  • Not an essential requirement to have 2 different occupants as long as the right was continuous and apparent.
    • Crouch family owned a hotel and an island on Norfolk broads
    • When they owned the whole lot would go across to the island and allow hotel guests to do the same, moor boats etc
    • Crouch family sold hotel to Platt, but retained the island. Platt claimed had right to moor boats on the jetty on the island for hotel guests under S62 even though no such right in transfer deed
    • Judge ruled that as long as it was continuous and apparent, s62 raised quasi-easements to easements
75
Q

Wood v Waddington [2015]

Implied under s.62 LPA 1925

Diversity of Occupation

Implied Acquistion

Easements

A

Confirmed decision in Platt v Crouch.

Not an essential requirement to have 2 different occupants as long as the right was continuous and apparent.

76
Q

Requirements for Acquired by Prescription

A
  • grantee’ exercises right for 20+ years
    • No force
    • No secrecy
    • No permission
  • Continuous use
    • Mills v Silver [1991] – right of access to hill farm over track on adjoining land – right of way by prescription – had been used between 1922 and 1981 – no express permission had been given, but owners knew about it, so wasn’t secret
    • 1987 – tried to make the track concrete for use in all weathers, but owners sued for trespass. Court said easement had been acquired by prescription.
  • Generally only a freeholder can claim a right in prescription
77
Q

Methods of acquiring an easement by prescription

Common law rule

A
  • Common law presumes that if you have been exercising your right for more than 20 years been exercising it since start of legal memory (1189)
  • To defeat must show not possible to exercise since 1189 (because building/pipes etc didn’t exist then)
78
Q

Methods of acquiring an easement by prescription

Lost Modern Grant

A
  • If you’ve been exercising a right for more than 20 years, law presumes it was granted by deed since 1189 and the fictional deed has been lost
  • Can be defeated by showing the servient land was owned by someone who had no capacity to grant that easement
  • A fiction upon a fiction
79
Q

Methods of acquiring an easement by prescription

Prescription Act 1832

A
  • Act says if you have been exercising a right for more than 20 years then you have an easement, even if it was interrupted for a year.
  • If it was interrupted for more than one year, you don’t have an easement
80
Q

Wood v Saunders [1875]

Changed or Excessive User

Easements

A
  • When the user of the dominant tenement changes, the servient tenement should not be made subject to any significantly different or additional burden to that existing at the date of the express or implied creation of the easement.
  • House with the benefit of drainage was extended and became an institution housing 150 people. Dominant owner had to restrict the usage to that which was used at the time of the grant.
81
Q

Jelbert v Davis [1968]

Changed or Excessive User

Easements

A
  • When the user of the dominant tenement changes, the servient tenement should not be made subject to any significantly different or additional burden to that existing at the date of the express or implied creation of the easement.
  • Dominant tenement had right of access at all times and for all purposes over servient land. Injunction granted when dominant owner wanted to change use of his land from agricultural to a caravan park for 200 caravans.
82
Q

Enforcing the Burden of an Easement against a Successor of the Servient Tenement

Servient Tenement is Registered Title

Legal Easements acquired by express acquisition

A
  • Requires registration to exist as a legal easement (LRA 2002, s27(2)(d))
  • Once registered, will bind anyone who acquires the servient tenement
  • In practice, owner of the dominat tenement must be registered as owner of easement.
  • Registrar must enter a notice on charges register of servient tenement (LRA 2002, s38)
  • If not registered, not legal
  • If an easement arises by operation of LPA 1925, s62, it is specifically excluded from LRA 2002, s27(2)(d) by LRA 2002, s27(7).
83
Q

Enforcing the Burden of an Easement against a Successor of the Servient Tenement

Servient Tenement is Registered Title

Legal Easements acquired by implied acquisition or prescription

A
  • Overriding interests under LRA 2002, Sch 3 para 3 and bind subsequent owner of servient tenement if:
    • Easement is within actual knowledge of person to whom disposition being made OR
    • Obvious on reasonably careful inspection of land over which easement is exercisable OR
    • Exercised within a year before date of purchase
84
Q

Enforcing the Burden of an Easement against a Successor of the Servient Tenement

Servient Tenement is Registered Title

Equitable Easements

A
  • Should be protected by a notice on charges section of register of servient tenement (LRA 2002, s32)
  • Will then be binding on any subsequent owner of servient tenement (LRA 2002, s29(2)
  • If not entered, equitable easement will not bind purchaser for value of servient tenement (LRA 2002, s29(1) but will bind everyone else, e.g. people given the land or inherit it (LRA 2002, s28)
85
Q

Waterloo v Bacon [1866]

Express Release

Extinguishment of Easements

A
  • A deed is necessary for an express release of a legal easement, but equity may interfere if one party has been prejudiced by relying on a written or oral release.
86
Q

Williams v Sandy Lane (Chester) Ltd [2007]

Implied Release

Extinguishment of Easements

A

Release is implied when dominant owner abandons his rights.

87
Q

Swan v Sinclair [1924]

Implied Release

Extinguishment of Easements

A

Right of way not used for over 50 years and blocked by fences, held to be abandoned.

88
Q

Benn v Hardinge [1992]

Implied Release

Extinguishment of Easements

A

Right of way not used for over 100 years because alternative access routes was not abandoned, and could be resurrected

Land (13 decks)

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