Easements: Methods of Creation Flashcards
What are the three methods for creating an easement, and can you briefly outline each method?
- Express Grant or Reservation: This method involves a clear agreement between neighbors where one party grants or reserves an easement over the other’s land, such as when selling a part of land but retaining certain rights over it. The easement must be clearly stated and follow correct legal procedures to be valid.
- Implied Grant or Reservation: Easements can also be created without explicit documentation, inferred from the circumstances of a land sale. Implied easements arise from necessity, common intention of the parties, the rule in Wheeldon v Burrows, or under Section 62 of the Law of Property Act 1925, suggesting that certain rights are so inherent to the land’s use that they are assumed to be granted or reserved.
- Prescription: An easement can be acquired through long-term use under the principle of prescription. This requires the use of the land in a manner that is continuous, open, and without the express permission of the landowner over a legally defined period, leading to the right being established by long-standing practice.
How is an easement created through express grant or reservation?
An easement is created through express grant or reservation when the owners of two neighboring properties agree that one shall have specific rights over the land of the other.
What are the procedural requirements for establishing an easement through express grant or reservation?
For an easement established through express grant or reservation to be legally binding, it must follow specific procedural requirements. These include a clear expression of intent to create the easement and adherence to legal formalities for documentation and registration.
In what situations are express grants or reservations commonly used to create easements?
Express grants or reservations of easements commonly occur in two scenarios:
- when a landowner sells part of their property but wishes to retain certain rights over the sold land, known as a reservation, and
- easements can also be granted independently of any land sale. This flexibility allows landowners to structure the use of and access to their property in a manner that best suits their needs, ensuring the continued utility of both retained and sold parcels.
What are the types of implied easements available to a seller after selling a part of their land?
After selling a part of their land, a seller can retain two types of implied easements over the land sold to the buyer:
- Easements of strict necessity - rights essential for the reasonable use or access to the remaining land owned by the seller that cannot be otherwise achieved.
- Easements implied due to the common intention of the buyer and seller at the time of the sale - rights that, while not explicitly documented, are inferred to have been mutually intended by both parties based on the circumstances and usage of the land at the time of sale.
What rights do buyers have concerning implied easements over the land retained by the seller?
Buyers can exercise several types of implied easements over the land retained by the seller, including:
- Easements of strict necessity - essential rights needed for the reasonable enjoyment of the purchased land.
- Easements implied due to the common intention of the buyer and seller at the time of the sale - rights assumed to have been agreed upon by both parties, even if not formally documented.
- Easements under the rule in Wheeldon v Burrows - rights that were apparent, continuous, and necessary for the reasonable enjoyment of the land being sold, used by the seller before the sale.
- Easements under Section 62 of the Law of Property Act 1925 - rights that pass with the land automatically upon the conveyance of a property, assuming no contrary intention is expressed.
What does Wong v Beaumont Property Trust Ltd reveal about the nature of implied easements in lease agreements?
Wong v Beaumont Property Trust Ltd reveals that implied easements can extend to necessary improvements for a property’s intended use, even if such needs weren’t anticipated at the lease’s inception.
Lord Denning MR’s observation that “It was not realised by the parties, at the time of the lease, that this duct would be necessary. But it was in fact necessary from the very beginning” underscores a critical aspect of easements: they can be implied to ensure the property’s functional use according to its intended purpose.
What criteria did Thesiger LJ establish in Wheeldon v Burrows for a buyer to acquire an implied easement over a seller’s retained land?
In Wheeldon v Burrows, Thesiger LJ established that for a buyer to acquire an implied easement over a seller’s retained land, the right in question must be:-
- Continuous,
- Apparent,
- Necessary for the reasonable enjoyment of the land, and
- Being used as a ‘quasi easement’ by the seller at the time of sale.
This rule ensures that the buyer retains the practical use and benefits they presumed to accompany the land purchase.
What principle underlies the criteria set out in Wheeldon v Burrows?
The underlying principle, as stated by Bowen LJ in Birmingham, Dudley & District Banking Co v Ross, is that a grantor cannot derogate from his grant, meaning they cannot offer a right with one hand and take away the means to enjoy that right with the other.
This principle emphasizes fairness and the preservation of intended land use post-transaction.
Give the name and date of the case described below
A lessee, part of a development scheme by a corporation, constructed a building that later faced a potential loss of light due to new construction across the street. This raised the question of whether an implied right to light exists when the lease was granted under a development plan expected to undergo significant construction.
The court clarified that an easement of light, to be enforceable, must be under conditions that reasonably lead to an expectation of its continuance. This ruling highlights the nuanced application of the principle that while a grantor should not derogate from the grant, the rights themselves must be understood within the specific expectations and agreements made at the time of the grant, especially in a development context.
Birmingham, Dudley & District Banking Co v Ross (1888)
Give the name and date of the case described below
The claimant owned a cottage built very close to the boundary of the defendant’s farm, requiring access to the farm for maintenance of the cottage walls. The claimant sought an easement to access the defendant’s farm for this purpose.
The Court of Appeal held that no easement was implied by grant under the rule in Wheeldon v Burrows but found an easement was implied by grant under section 62 of the Law of Property Act 1925. Ungoed-Thomas LJ clarified that positive easements not “continuous and apparent” do not fall within the Wheeldon v Burrows doctrine. The case explores the criteria for an easement to be implied by grant, emphasizing the need for a permanent feature on the servient land, visible upon inspection, for an easement to be “continuous and apparent.”
Ward v Kirkland [1967]
What does section 62 of the Law of Property Act 1925 imply about conveyances of land?
Section 62 implies that a conveyance of land automatically includes all appurtenant buildings, fixtures, liberties, privileges, easements, and rights, whether the land has buildings or not, or even if it’s a conveyance of a manor.
What conveyances does section 62 of the Law of Property Act 1925 apply to?
s 62 of the Law of Property Act 1925 applies to conveyances made after December 31, 1881, and only if a contrary intention isn’t expressed.
What is the purpose behind section 62 of the Law of Property Act 1925 regarding conveyances?
The purpose of section 62 is to streamline conveyance processes by implying general words into the conveyance of land, making it unnecessary to explicitly state everything conveyed with the land.
This leads to shorter, simpler conveyance documents, easing the conveyance process for both parties and reducing the reliance on lengthy documents to ensure all rights and advantages are transferred.
What are the three key requirements for an easement to be created under section 62 of the Law of Property Act 1925?
To create an easement under section 62, the conveyance must:-
- Involve a portion of land (either freehold or leasehold),
- The benefit of the right must have been enjoyed by the dominant land prior to the sale (even shortly before conveyance), and
- there must be diversity of occupation at the time of the conveyance, although recent cases suggest this is not always essential.