Easements MCQs Flashcards
Question 1
The freehold owner of a detached house (‘the Property’) is concerned about the extension proposed by her new neighbour. The proposed extension will make parts of the Property’s garden very gloomy.
Does the Property have an easement?
A Yes, the Property has an easement of light for the garden but must show an infringement.
B Yes, there is a clear easement of light which would prevent the new neighbour’s development.
C No, the Property does not have an easement as no new negative easements can be created.
D No, the Property does not have an easement of light as there is no defined aperture in a garden.
E Yes, the Property has an easement to have an uninterrupted view from her garden and can stop the new neighbour’s extension.
Answer
The correct option is D.
The right to light is a recognised negative easement (therefore, option C is wrong) but there is no general right to light (therefore, options A and B are wrong). A right to light must be via a defined aperture and it is hard to see how this would be a garden generally without a specific aperture benefiting from the right.
Option E is wrong as there can be no easement for an uninterrupted view.
Question 2
In 1989, a man purchased a freehold property consisting of a farm house and outbuildings including a large separate barn (‘the Barn’). The Barn has its own access to the main road, but the man has always used a track (‘the Track’) running past the main house to access the Barn. He prefers the Track as it avoids a dangerous right-hand turn. Last year, the man sold the Barn to a woman. The transfer included an express right over the main point of access but made no mention of the Track.
Which of the following answers best describes how an easement over the Track has been created?
A This is an easement of necessity which allows the woman to access the Barn.
B This is a common intention easement and the woman can only fulfil the purpose with the easement.
C The easement is created by Wheeldon v Burrows as a quasi-easement in use at the time of the sale.
D The easement was expressly created in the transfer to the woman.
E The easement was created by prescription as it has been used for over 20 years.
Answer
The correct option is C.
This cannot be an easement of necessity as there is an alternative means of access and, therefore, the Barn is not landlocked. Option A is, therefore, wrong.
There is no indication of a common purpose or intention in the facts, so option B is wrong.
The transfer to the woman contained an express grant only in relation to the main point of access, not the Track. Option D is, therefore, wrong.
This cannot be an easement by prescription as, although the use started in 1989, it could not become an easement until there was a separate dominant and servient owner. This only happened when the Barn was sold last year. Option E is, therefore, wrong.
The man exercised a quasi-easement over his own land. On the transfer to the woman, this became a legal easement on the basis that the easement was clearly continuous and apparent, necessary for the reasonable enjoyment of the land (to avoid the busy junction) and in use at the time of the sale. Option C is, therefore, correct.
Question 3
A freehold owner granted a 25-year lease of their property (‘the Property’). Five years after the lease was created, the freehold owner gave informal permission for the tenant to erect a sign upon the freehold owner’s adjoining land advertising the tenant’s business. Last month, when the lease came to an end, the tenant purchased the freehold to the Property. The transfer made no mention of the sign.
Which of the following answers best describes how an easement in relation to the sign has been created?
A The easement was created by s 62 LPA 1925 as an existing privilege upon the transfer of the freehold to the tenant.
B The easement was expressly created on the transfer of the freehold to the tenant.
C This is an easement of necessity which allows the tenant to erect a sign.
D The easement was created by prescription as it has been used for over 20 years.
E The right is not capable of existing as an easement as it does not accommodate the dominant tenement.
Answer
The correct option is A.
The easement in relation to the sign was created by implication by s 62 LPA 1925. There was an existing privilege (the freehold owner’s informal permission to erect the sign), there was diversity of occupation (the freehold owner owning the servient land and the tenant occupying the Property) and there was a conveyance (the transfer of the freehold to the tenant). The effect of the conveyance is to create a legal easement in relation to the sign.
There is no mention of the easement in the transfer of the Property. Option B is, therefore, wrong.
Although the easement has been exercised for over 20 years, most of this period was whilst the Property was let. A prescriptive right can only be created as between two freehold owners. Option D is, therefore, wrong.
It is hard to consider any circumstances in which an easement relating to a sign could be an easement of necessity. Option C is, therefore, wrong.
Option E is correct in relation to the legal principle but does not answer the question asked and is, therefore, not the best answer.
A woman occupied a shop under a two year lease. At the end of the term, the lease was renewed for a further two years. The woman continues to occupy under the new lease. The new lease was made by deed and its provisions made no reference to s.62 of the Law of Property Act 1925.
The shop has an external storeroom at the rear, which is owned by the landlord. Although it is not included in either lease, the woman has always used it to store stock. At the beginning of the original lease, the landlord said he was happy for the woman to do this, as long as she kept the storeroom tidy, because he also uses it for storage.
Yesterday, the landlord revealed his plan to demolish the storeroom. The woman wants to prevent this by establishing that she has the right to use the storeroom.
Does the woman have an enforceable easement to use the storeroom?
A. Yes, because the new lease converted her licence to use the storeroom into an easement.
B. Yes, because the storeroom is necessary to her business.
C. No, because the agreement to allow her to keep stock in the storeroom was a mere licence.
D. No, because the agreement to allow her to keep stock in the storeroom was not recorded in writing.
E. No, because she shares the use of the storeroom with the landlord.
A - Yes, because the new lease converted her licence to use the storeroom into an easement.
q
A man and a woman are adjoining land owners. The man has told the woman that it plans to build a large extension at the back of its house. The woman is very concerned that this will block the sun to her garden and make it very dark.
Can the women claim an easement in respect of the man’s land that could stop the extension from being built?
The woman cannot claim an easement of light as the court will not recognise new negative easements
The woman can claim an easement of light which the proposed extension would block
The woman can claim an easement of light because it is a recognised negative easement
The woman cannot claim and easement as there is no such thing as a right to a view
The woman cannot claim an easement of light as there is no defined aperture in a garden
The woman cannot claim an easement of light as there is no defined aperture in a garden
This is correct. A right to light is one of a few recognised negative easements - it is not a ‘new’ negative easement, which the court will not recognise.
However, there is no general right to light. A right to light is an easement that gives a landowner the right to receive light through defined apertures in buildings or on their land. There is not a defined aperture in the woman’s garden to through which the right to light could be claimed on the facts, the women is just trying to claim a general right.
A farmer owns the freehold of a farm. Five years ago the farmer leased out the southern part of the farm to a tenant under a four year legal lease. The farmer retained the northern part of the farm to live in. During the lease, the farmer continued to use the drains which serve the northern part of the farm and run under the southern part of the farm leased to the tenant.
Last year, the four year lease expired. The farmer granted the tenant a new four year legal lease on exactly the same terms as the previous one. There was no reference to the right to use the drains.
Which of the following statements best explains whether the farmer has acquired an easement to use the drains?
The farmer has acquired an easement impliedly under the rule in Wheeldon v Burrows.
The farmer has not acquired an easement.
The farmer has acquired an easement impliedly by common intention.
The farmer has acquired an easement impliedly by necessity.
The farmer has acquired an easement impliedly under s.62 Law of Property Act 1925.
The farmer has not acquired an easement.
This is correct. This is an attempted reservation. There is no mention of the right to use the drains in the lease, so it cannot be an express easement. The only methods of implied acquisition available for reservations are: necessity and common intention. Necessity will not apply - necessity is only applicable to rights of way where there is no other means of access to the land. The courts will only allow an easement of common intention in a reservation situation if there is no other possible interpretation of the facts (Peckham v Ellison; Re Webb’s Lease). Here, the farmer can use its retained land without the drainage right and had two opportunities to reserve this right (in the first and second leases) (Yeung v Patel) so the court is unlikely to imply this reservation.
q
A landlord was the registered freehold proprietor of two adjoining plots of land. Fifteen years ago, the landlord made a valid contract with a tenant in which it agreed to grant a 20-year legal lease of the southern plot (commencing on the date of the contract). The contract stipulated that the tenant was to use the southern plot for a specified purpose.
Immediately the contract was made, the landlord and tenant appreciated that the tenant could only use the southern plot for the specified purpose if the tenant was able to park a car on the northern plot.
The landlord, who had retained possession of the northern plot, told the tenant that it could park a car on that plot. The tenant has parked a car on the northern plot for the past 15 years.
Which one of the following statements is a correct description of the tenant’s right to park on the northern plot?
The tenant can park their car by reason of an express legal easement.
The tenant can park their car by reason of an implied equitable easement.
The tenant can park their car by reason of an express equitable easement.
The tenant can park their car by reason of a prescriptive easement.
The tenant can park their car by reason of an implied legal easement.
The tenant can park their car by reason of an implied equitable easement.
This is the correct answer. Where an estate is transferred or granted to a person for a particular purpose, and that purpose can only be realised if the transferee or grantee can exercise an easement over land retained by the transferor or grantor, that easement will be implied by reason of common intention: Wong v Beaumont [1965] and Donovan v Rana [2014] EWCA Civ 99.
Since the tenant can only use the southern plot for the specified purpose if it is able to park on the northern plot, an easement of parking will be implied.
Implied easements derive their legal or equitable status from the transaction into which they are implied. Since the tenant acquired an equitable lease (arising by reason of the specifically enforceable contract to grant a lease: R v Tower Hamlets LBC ex parte Von Goetz [1999] QB 1019), any easements implied into that lease would be equitable.
A freeholder owns the freehold of a large property and garden. 6 years ago the freeholder let the top floor flat to a tenant under a 5 year legal lease. After moving in, the tenant asked the freeholder to use part of the garden to grow vegetables and relax in. The freeholder agreed. Last year, the 5 year lease expired and a new 5 year legal lease was granted on exactly the same terms as the previous one. There was no reference to the right to use the garden.
Which of the below statements best explains whether the tenant has acquired an easement to use the garden?
The tenant has acquired an easement impliedly under s.62 of the Law of Property Act 1925
The tenant has acquired an easement impliedly under the rule in Wheeldon v Burrows (1879)
The tenant has acquired an express legal easement under the new 5 year lease
The tenant has not acquired an easement because this is a reservation and the right to use the garden is not necessary to access the top floor flat
The tenant has not acquired an easement because the top floor flat can be used for residential purposes without use of the garden
The tenant has acquired an easement impliedly under s.62 of the Law of Property Act 1925
This is correct. the tenant has acquired an easement impliedly under s.62 of the Law of Property Act 1925. On the grant of the second 5 year lease, the informal permission to use the garden is upgraded to an easement and implied into this lease. The facts are similar to Wright v Macadam [1949] 2 KB 744, which demonstrates this mode of acquisition.
An easement can be acquired expressly or impliedly. You should consider first if there has been express acquisition – is the easement written down and does it comply with the necessary formalities? If not, consider if the circumstances mean the easement could have been acquired impliedly by one of the recognised modes. Certain modes of implied acquisition only apply if it is a grant, rather than a reservation, situation. It is therefore important that you understand not only the different modes of acquisition, but also the distinction between reservation and grant.
A landowner owns the freehold of a large property. The self-contained basement flat is rented to a tenant under a 3 year lease. In the lease, the tenant is granted a right to use the landowner’s garden shed to store bikes. The tenant’s bikes take up all of the space in the shed. As the bikes are expensive, the tenant secures the shed with a padlock, which the landowner does not have a key for.
Which of the following statements best explains why the right to store is not capable of being an easement?
The right is not capable of being an easement because permission must be sought by the dominant land owner to exercise the right
The right is not capable of being an easement because it does not touch and concern the dominant land
The right is not capable of being an easement because there is no diversity of ownership
The right is not capable of being an easement because the servient land owner is not left with any reasonable use of the shed
The right is not capable of being an easement because the right is negative and the court is not prepared to recognise new negative easements
a
The right is not capable of being an easement because the servient land owner is not left with any reasonable use of the shed
This is correct. The right is not capable of being an easement because it grants exclusive possession to the dominant land owner. The tenant is using all of the available space in the shed so the landowner cannot make any reasonable use of it (Batchelor v Marlow [2003] 1 WLR 764). In addition, the landowner does not ‘retain possession or control’ of the shed (the test suggested by Moncrieff v Jamieson [2007] UKHL 42) as the tenant locks the shed, which the landowner does not have a key for.
In order for a right to be capable of being an easement it must satisfy the requirements established in Re Ellenborough Park [1955] EWCA Civ. If the right does not satisfy any of these requirements, it is not capable of being an easement and will be merely a personal permission (a licence) rather than a proprietary right in the land, which an easement it. Even if a right satisfies the requirements of an easement laid down in Re Ellenborough Park, the right can be defeated (i.e. will not be an easement) if it requires payment by the servient land owner, grants exclusive possession to the dominant land owner or requires permission from the servient land owner in order to be exercised. If a right is capable of being an easement then you then need to consider if it has been acquired (expressly or impliedly) as an easement on the facts.
