EASEMENTS Flashcards
What is an easement?
- a proprietary right to use land which belongs to somebody else
Who is the grantee/ grantor?
- The person who receives the benefit of the easement is the grantee and their land, which is benefitted by the easement is the dominant tenement.
- The person who grants the easement land is the grantor and their land, which is burdened by the easement, is the servient tenement.
How will an easement be a legal interest?
- if it fulfils the requirements as to duration
- If the right has not been granted or reserved for the equivalent of a freehold or leasehold estate, then it can only be equitable (s1(3) LPA 1925)
What is the difference between a positive and negative easement?
positive - they allow the holder to use the servient land of another in a particular way.
negative - they do not involve entering the neighbouring land, as the right conferred can be enjoyed from the holder’s land.
What is a quasi-easement?
- Where landowners use, for example, paths on their own land, they are not enjoying easements. They are using the paths as owners of the land.
- However, the use of the paths could become easements if ever the land was divided.
What is the difference between a public right and an easement?
- Instead of being exercised by an individual or particular body, the right by its nature is exercised by the general public.
What is the difference between a licence and an easement?
- A licence can authorise somebody to use land in the same way as an easement does.
- A licence is not, however, a proprietary right in land: it merely confers a personal right which cannot be enforced against a third party unless it is accompanied by an estoppel.
What is the difference between a profits a prendre and an easement?
- An easement does not confer on the holder the right to take anything, such as produce, animals, fish, or minerals, from the land.
- A profit a prendre confers such a right.
What is the difference between a grant and reservation of an easement?
- A grant exists where C, a landowner, sells or leases part of C’s land to D, and gives to D an easement over the land which C has retained.
- a reservation exists where C sells or leases part of C’s land to D, and retains a right over the land sold or leased to D.
Can someone use a granted easement for benefit of additional land?
No - If D has a right over C’s land, D cannot use the right for the benefit of additional land D subsequently buys (Harris v Flower)
- unless the use of land is ancillary to the dominant land use
How are easements created?
Expressly - set out in writing
Impliedly
Prescription/ long use - been exercised over land for a long time
What are the requirements for whether an easement can be recognised as a fully enforceable right?
1) A legal easement
2) the right must be capable in principle of being an easement.
- It must satisfy the tests inre Ellenborough Park
3) the right must not be prevented from being an easement by the presence of one of the ‘disqualifying factors
4) the right must have been acquired as an easement.
What are the 4 essential characteristics of an easement as laid out by Re Ellenborough Park?
1- There must be a dominant and servient tenement (land)
2- The right must accommodate the dominant tenement
3- There must be diversity of ownership
4- The right must ‘lie in grant’
What components make up the second requirement of Re Ellenborough Park? (Accommodates the dominant tenement)
Rights benefit the land itself + Sufficient proximity
What does “the right must lie in grant” mean?
The right must be capable of forming the subject-matter of a deed:
- The right must be granted by a capable grantor to a capable grantee.
- The right must be capable of reasonably exact
- The right must be judicially recognised.
