EASEMENTS - CREATION

Question 1

What are the formalities needed for an express legal easement?

Answer 1

• All expressly granted legal interests must be created by deed: s 52LPA 1925.
• To be a deed, a document must comply with the formalities ins 1 LP(MP)A 1989:
  ○ Must be clear it is intended to be a deed
  ○ Signed by grantor and witnessed
  ○ Delivered /dated
• The easement must be substantively registered at the Land Registry to be legal: s 27(2)(d) LRA 2002.

Question 2

What are the formalities needed for an express equitable easement?

Answer 2

• must comply with the formalities for an estate contract set out ins 2 LP(MP)A 1989:
  ○ Must be made in writing
  ○ Must include all expressly agreed terms
  ○ Must be signed by both parties
• No substantive registration needed

Question 3

What are the formalities needed for an inherently equitable easement?

Answer 3

• much less formally created. s 53(1)(a) LPA 1925:
  ○ Must be made in writing
  ○ Must be signed by the grantor
• No substantive registration is needed for an equitable easement to exist.

Question 4

What is an inherently equitable easement?

Answer 4

Easements which do not fall within the definition of legal easements inLPA 1925, s 1(2)(a)because they are not granted or reserved for a freehold or leasehold term can only be equitable.

Question 5

What is the implied acquisition method of necessity?

Answer 5

• An easement will be implied by necessity where it can be shown that its existence is essential in order that any use of the dominant tenement can be made. It is not enough that the right in question merely adds to the enjoyment of the dominant tenement.

Question 6

What sort of land is implied acquisition by necessity successful for?

Answer 6

landlocked land

Question 7

When will an easement be implied by common intention?

Answer 7

• where land has been sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the easement sought.

Question 8

What are the conditions for when an easement is implied by common intention?

Answer 8

1) The dominant land must be sold or leased for a specific purpose.
- not general purpose
2) The purpose must be known to both parties.
3) The easement claimed must be essential to achieve the common purpose.

Question 9

When will an easement be implied by the rule in Wheeldon v Burrows?

Answer 9

• An easement will be implied by the rule in Wheeldon v Burrows where an owner (A) of a plot of land sells or leases some of this land to an owner or tenant.
• The new owner or tenant will impliedly acquire as easements all those rights which A had previously exercised over the land she retains for the benefit of the land she has just sold/leased to the new owner/tenant. Prior to the sale/lease, these rights were enjoyed by A as ‘quasi-easements’. They were not ‘proper’ easements, as a person cannot have an easement over her own land.

Question 10

What are the Wheeldon v Burrows requirements?

Answer 10

• Only applies where the right being claimed would have been a grant to the claimant.
• The right must have been enjoyed as a quasi-easement by the seller or the landlord before the land was divided.
• The quasi-easement must have been ‘continuous and apparent’.
• The quasi-easement must be necessary for the reasonable enjoyment of the dominant land.
• The quasi-easement must be in use by the common owner at the date of the transfer or lease of the dominant land.

Question 11

When will an easement be implied by s62 LPA 1925?

Answer 11

• grants not reservations
• when the land has been divided before the informal permission is given, and the permission becomes an easement when the leased land is re-let or sold.
• where the land is divided for the very first time by lease or sale of part, if the right is ‘continuous and apparent’.

Question 12

Can the easement implied by s62 LPA 1925 ever be equitable?

Answer 12

No!

Question 13

What are the requirements for the upgrade effect of s62 LPA 1925?

Answer 13

1) Only applies where the right being claimed would have been a grant to the claimant.
2) There must have been prior diversity of occupation of the dominant and servient land.
3) An informal permission or licence must have been granted to the occupier of the dominant tenement to use the servient land in some way.
4) There must have been a conveyance (i.e. a transfer by deed or a legal lease) of the dominant tenement.