L5: Easements

Question 1

What is an easement

Answer 1

Limited rights a landowner may enjoy over the land of a neighbour

Question 2

What are examples of easements

Answer 2

Right of way, right to park, right to lighting/exit signs

Question 3

How is land demarcated in easements?

Answer 3

Dominant tenement (benefited land) vs Servient Tenement (burdened land)

Question 4

What is the dominant tenement

Answer 4

The benefited land enabling owner for the time being of the land to use the easement (E.g. walk across a neighbours land, receive light or use a drainage channel)

Question 5

What is the servient tenement

Answer 5

The burdened land requiring the current owner to suffer the exercise of an easement (e.g. allow a neighbour to walk across, not interfere with passage of light, permit water drainage)

Question 6

What is the effect of an easement?

Answer 6

Once created, can be enjoyed or suffered by any subsequent owner of dominant or servient land (not merely personal- a proprietary interest)

Question 7

Which authority states the requirements for the creation of an easement?

Answer 7

Ellenborough Park Property

Question 8

What if the easement has not been created with the correct formalities?

Answer 8

Potential easement will not exist- will take effect as a personal licence

Question 9

What is the first condition for an easement

Answer 9

There must be a dominant and servient tenement- a benefited and burdened land, identifiable when the easement is created

Question 10

What is the second condition for an easement

Answer 10

The dominant and servient tenements must be occupied by different persons

Question 11

What happens if the dominant and servient tenement come into ownership and occupation of the same person?

Answer 11

Easement will be extinguished

Question 12

What is the third requirement for an easement

Answer 12

Alleged easement must accommodate (confer a benefit) on the dominant

Question 13

What is the test for whether a use accommodates the dominant according to Regency Villas

Answer 13

Whether the utility of land is increased by the alleged easement, bearing in mind the purpose for which the land is normally used.

Question 14

Relevant considerations on what is required for a use to accommodate the dominant tenement

Answer 14

1) Sufficient proximity between dominant and servient for it to confer a benefit- the more physically separate, less likely a court will regard a use of one as accommodating the other
2) Alleged easement must not confer a purely personal benefit/advantage on the owner of the dominant tenement (Hill v Tupper)
3) Unlikely that a use conferring a vague/general recreational right on the dominant tenement will be accepted as an easement - not to be used for public amenities
4) For accommodation, use does not have to be needed by the dominant
5) Reluctance to recognise as an easement any use giving the alleged dominant tenement owner a large measure of occupation or control of the servient land akin to ownership

Question 15

Hill v Tupper

Answer 15

-Owner of a canal granted C the right to put pleasure boats on the canal for profit, held to be a personal advantage
- Use not sufficiently connected with the c’s land because c would have been benefited from the right whatever land he owned, or even if he had no land at all

Question 16

What is the fourth condition for the grant of an easement?

Answer 16

Alleged easement must be capable of forming the subject matter of a grant (i.e. must be expressly capable of being created by deed and must lie in grant

Question 17

Copeland v Greenhall

Answer 17

No easement could exist to store tools of trade on the servient land

Question 18

What is the test for whether a use is too onerous on the servient land Batchelor

Answer 18

Dies the servient owner retain reasonable use?

Question 19

What are the 4 requirements for a valid easement

Answer 19

1) There must be a dominant and a servient tenement
2) An easement must “accommodate” the dominant tenement
3) Dominant and servient owners must be different persons
4) The right is capable of forming the subject-matter of a grant

Question 20

How is a legal easement created?

Answer 20

If an easement is attached to a dominant tenement that is held under a normal freehold or leasehold estate;
If they are created by statute, deed or registered disposition, or prescription(long use)

Question 21

How can an easement be created by statute?

Answer 21

Act of parliaments may determine that a local authority, corporation, or private individual are entitled to the benefit of an easement.

Usually for a public purpose such as to facilitate the completion of a high speed rail link or the enhancement of an electricity distribution network => legal easement

Question 22

How can an easement be created by prescription?

Answer 22

Acquisition of an easement by long use- where a person has enjoyed a right of way for many years

Question 23

Which 3 forms can prescription take ?

Answer 23

Common law prescriptions, lost modern grant & prescription under the prescription act 1832

Question 24

How can an easement be created via deed?

Answer 24

Encompassed in a formal document and are legal rights

Question 25

What is the requirement for an easement expressly granted out of a registered estate?

Answer 25

Must be entered on the title of the servient land in order to take effect as a legal interest- must be substantively registered. Failure -> equitable easement

Question 26

What is an equitable easement?

Answer 26

Easements held for periods less than a freehold or leasehold- most likely to arise where the parties failed to use the appropriate formalities

Question 27

How does an equitable easement arise

Answer 27

Through written contract that equity regards as specifically enforceable

Question 28

What is the effect of failure to use a written contract in the absence of proprietary estoppel

Answer 28

no easement can arise, may amount to a licence over the land- a personal right unenforceable against 3rd party purchasers

Question 29

S2 LP MP A

Answer 29

A contract for the creation of a n interest in land must be in writing, incorporating all the terms, signed by both parties to be enforceable

Question 30

Chaudhary v Yavus

Answer 30

Servient owner estopped from denying the existence of an easement to use a stairway as a fire escape

Question 31

Why must we distinguish between legal and equitable easements?

Answer 31

To understand the effect easements may have on subsequent purchasers of the dominant and servient tenements

Question 32

What is the effect of easements on registered land

Answer 32

pass automatically to a purchaser or transferee of a dominant tenement

Question 33

What are some other examples where easements were granted in a commercial context?

Answer 33

Moody v Steggles
Accepted that sign advertising could be an easement as it benefited trade taking place on dominant tenement
London and Blenheim Estates v Ladbroke Retail Parks
Right to park on adjoining land and walk across it with shopping trolleys on which there was a supermarket = easement
Platt v Crouch
Right to moor boats was capable of subsisting as an easement for the benefit of a hotel on the dominant land
Right was for the land (hill- right was for c’s business)
Alleged easement must be connected with the land so the owner accrues a benefit because they own the estate

Question 34

Why did the court strike down the easement in Hill v Tupper

Answer 34

The owner of a canal granted the claimant the right to put pleasure boats on the canal for profit
Held to be a personal advantage - benefited the business, not the land
Use was not sufficiently connected with the claimant’s land

Question 35

What is the test for whether an easement is capable of forming the subject matter of a grant?

Answer 35

Must be capable of being expressly conveyed by deed
Capable grantor
someone legally competent to create an easement (no easement where purported grantor is a limited co with no power in its articles)
Capable grantee
All rights must be sufficiently certain
Capable of preicse deginition so the servient may know the extent of the obligation imposed on them
Re aldred- a right to a good view could not exist as an easement - too indefinite
Must be in the general nature of rights the law recognises as easements
Positive obligations on servient are not generally recognised with limited nature of easements
William old international v Arya
Judge expressly held that easements could not operate to impose positive obligation to do something (they operate negatively to prevent servient from interfering with permitted use)
Reluctance to allow easements that give dominant owner a large measure of occupation/control of the servient land

Question 36

Case law examples of easements that were not permitted

Answer 36

Copeland v Greenhalf
No easement to store tools of trade on the servient land
Grigsby v Melville
Right of storage in a cellar could not be recognised
Hanina v Morland
Right to use flat roof of neighbouring land could not be used (equivalent to ownership)
Batchelor v Marlowe
Right to park several cars could not be an easment as the impact on the servient land was too great
Servient owner must retain reasonable use

Question 37

What are the manners in which an easement may be generated?

Answer 37

Expressly (legally or equitably)
Impliedly
By prescription

Question 38

What are the formalities for a legal easement?

Answer 38

Creation by deed s52 LPA 1925 and s1 LP(MP)A 1989
Substantive registration (if it is over registered land) s27(2) LRA 2002 - unnecessary for impliedly created easements
Must be of a duration equivalent to an estate – s1(2) LPA 1925

Question 39

What are the formalities for an equitable legal easement?

Answer 39

Creation by contract S2 LPMPA 1989
Must be in writing, incorporating all terms and signed by both parties

Question 40

Does the benefit of an easement pass to a purchaser of dominant land ?

Answer 40

Registered
Automatically passes whether the easement is legal or equitable

Question 41

Does the burden of an easement pass to the purchaser of a servient land

Answer 41

Depends on whether it is legal/equitable ; expressly/impliedly created

Question 42

Rule for legal easements existing over registered title before LRA 2002

Answer 42

Qualify as overriding easements under LRA 1925, binding servient land

Question 43

Rule for legal easements existing over unregistered land subject to first registration LRA

Answer 43

Qualify as overriding interested sch 1, para 3 LRA
Bind servient land automatically when registered

Question 44

Rules for legal easements created over a registered estate after LRA 2002

Answer 44

Legal easement does not qualify until it has been substantively registered
Expressly granted easements will be legal interests binding servient land
Failure to register -> equitable interest only

Question 45

Rule for legal easements impliedly created over registered estate where the servient land is not registered

Answer 45

This means legal easements created by reason of prescription, necessity, common intention, Wheeldon v burrows rule, s62 LPA (against a legal lease for 7 yrs)
Because it can’t be substantively registered, it can qualify as an overriding interest binding a servient land automatically without registration IF it falls within sch 3 para 3 LRA

Question 46

According to sch 3 para 3 LRA, when will a legal easement take effect as an overriding interest?

Answer 46

It is registered under the commons registration act 1995
It would have been obvious on a reasonably careful inspection of the land
It was known about by the purchaser of the servient land
It has been used within 1 year immediately prior to the transfer

Question 47

Why is it likely that many impliedly legal easements are likely to be brought on the register of the title?

Answer 47

New owner is under a duty to disclose such interests by reason of s71 LRA
If disclosed, they will be registered & binding by reason of registration

Question 48

Rule for equitable easements over registered land that were overriding before LRA

Answer 48

Equitable easements that were openly exercised and enjoyed qualified as overriding inderests under s70(1)(a) 1925 act; Cestell v Aloth; Thatcher v Douglas

Question 49

Rules for equitable easements over unregistered land at first registration

Answer 49

Equitable easement is only binding on owner of unregistered servient land if it is registered as class d(iii) charge under LCA 1972
Registration entry is transferred to title register of the servient land when the servient land is first registered
If it is not registered as a charge, it is not capable of being an overriding interest

Question 50

Rules for new equitable easements

Answer 50

Equitable easements post LRA cannot constitute overriding interests sch 3
Para 3 sch 3 limited to legal easements
If it is to survive transfer to purchaser of servient land, must be protected by an entry of agreed or unilateral notice on the register of title of servient land
Failure = unenforceability agiant purchaser

Question 51

What are the rules for whether the benefit of legal & equitable easements become part of the dominant tenement, binding on purchasers in unregistered land?

Answer 51

Automatically passes

Question 52

What are the rules for whether the burden of legal & equitable easements become part of the servient tenement, binding on purchasers in unregistered land?

Answer 52

Legal = automatically binding
Equitable
Class D III land charges under LCA 1972
Must be registered as a land charge to bind a subsequent purchaser for money
failure= unenforceable against purchaser, enforceable against squatter, gift recipient or successor

Question 53

Are equitable easements created by estoppel subject to the requirement of registration as a class d(iii) charge

Answer 53

Ives v High - not within stat definition of a class D III charge
Only binding according to the doctrin of notice
Valid against everyone except a bona fide purchaser for value who has no notice

Question 54

How can an easement be created expressly?

Answer 54

By express grant or reservation

Question 55

How is an easement created by express grant?

Answer 55

Owner of potential servient tenement grants easement over land to dominant
If the grant is by deed or registered, the easement will be legal
If by enforceable written contract, it will be equitable
Servient sells a piece of land, they may grant easement to purchaser
E.g. servient sells part of her land and includes in the sale the right to lay water pipes under her land

Question 56

How is an easement created by express reservation ?

Answer 56

Owner of potential dominant keeps (reserves) an easement oprating over other land
Dominant sells a piece of land, they may reserve the easement for themselves - piece sold is the servient

Question 57

How is an easement created impliedly?

Answer 57

Implied by necessity

Question 58

How can an easement be implied by grant?

Answer 58

Most common in rights of way/light
A sells part of her land to B
Impossible for B to gain access without walking over the land retained by A
Easement of way by necessity implied

Question 59

What happened in Wong v Beaumont ?

Answer 59

Easement of ventilation was necessary when land sold to a purchaser was intended to be used as a restaurant but could not be used without an easement permitting a ventilation shaft over the land retained by seller

Question 60

What is the requirement for an implied grant by necessity?

Answer 60

Re MRA Engineering- a real necessity must exist
Access by foot was possible preventing implication of an alleged easement of way by reason of necessity for vehicles

Question 61

How can an easement by way of necessity be impliedly reserved?

Answer 61

A sells part of land to B but it is impossible for A to gain access to the land without walking over the land sold to B
Easement of way by necessity may be impliedly reserved in A’s favour
Courts are reluctant to imply an easement, as the seller could have achieved the same result expressly

Question 62

Why was an easement of way impliedly reserved in Sweet v Sommer?

Answer 62

The alternative access could only be achieved by the destruction of a physical barrier that both seller and purchaser agreed had to remain in place

Question 63

When can an easement be implied by common intention?

Answer 63

If this is required to give effect to the common intention of the parties
Easement does not have to be necessary for the use of land
Proof that the parties shared an intention as to a definite use of the land

Question 64

What happened in Stafford v Lee?

Answer 64

S (claimant purchaser) wished to build house on his own land
Only practical access for construction was over the defendant’s land
Land had been sold to C with a view to the construction, an easement of way for the purpose of construction was held to have been granted
In the common intention of the parties when the land was sold

Question 65

What happened in Donovan v Rana

Answer 65

Easement impliedly granted permitting normal utilites to be run under servient land - common intention of the parties that a dwelling house be built on the dominant land which was sold to c for that purpose

Question 66

Does the common intention have to be intrinsic to the land?

Answer 66

Linvale Investments v Walker- no
Easement of way implied in favour of purchaser to facilitate the common intention that the land be fully utilised so as to maximise profits for the owners

Question 67

How can easements be implied under s 62 LPA 1925?

Answer 67

Where an owner sells or leases part of land, and the sale impliedly carries with it certain easements for the benefit of the part sold, burdening the part retained
If landowner sells plot & conveys a legal estate to a purchaser, purchaser is granted all the rights previously enjoyed with the land
Grant only (no reservation)

Question 68

What conditions must be satisfied before s62 can create new easements in favour of the purchaser?

Answer 68

Applies only to sales or leases made by conveyance (grant or transfer of a legal estate)
Deed or registered disposition required
S62 will not create easements when made by mere contract
Easement is to be implied into the transfer of a legal estate
The use must take place prior to conveyance - 62 can’t create easements when the use occurred only after the dominant part was sold (Camplbell v Banks)

Question 69

Can the operation of s62 be excluded by conveyance?

Answer 69

If intention to exclude s62 is expressed in the conveyance s62(4); Browning v Jack

Question 70

What is prior diversity of occupation ? why is it common that s62 will operate in such situations?

Answer 70

Where plots of land owned by seller were in separate occupation (not ownership)before the sale Sovmots v Secretary of state for the environment
Seller will have occupied by potential servient land and potential dominant tenement was occupied by seller’s tenant or licensee

Question 71

Is prior diversity of occupation needed for s62?

Answer 71

Not essential if the alleged use was continuous and apparent- Wood v Waddington
Prior diversity needed if the alleged easement is not continuous and apparent

Question 72

What is an example of the operation of s62 in a prior diversity case?

Answer 72

Smith owns 2 homes, one of which she occupies herself, the other she lets by lease or licence by Jones (land is in prior diversity of occupation)
Smith allows Jones to walk over the garden of the house that smith occupies as a shortcut to the road
This is a mere licence= informal personal permission
There is no path & the use is irregular (not continuous and apparent)
Smith grants a new lease by deed to Jones (or sells the house)
S62 LPA turns the mere permission to walk over the garden into an easement of way
Implied into the conveyance

Question 73

What is the Wheeldon v Burrows rule?

Answer 73

Easement is implied into the sale of the land
May only be granted- never reserved for the benefit of the retained land
Where a person transfers part of his land to another, the transfer impliedly includes the grand of all uses in the nature of easements (quasi-easements) that the seller enjoyed and used prior to the transfer

Question 74

What are the conditions for the Wheeldon v Burrows rule?

Answer 74

Rights must be continuous and apparent
Rights must be necessary for the reasonable enjoyment of the part transferred
Right must not be inconsistent with the express terms of the conveyance (Wood v Waddington)

Question 75

What is a quasi easement?

Answer 75

Where a landowner uses one part of their land for the benefit of another (would be easements had the plots been in different ownership or possession)
Upon purchase, purchaser’s land = dominant; retained land by landlord is the servient

Question 76

What are conditions to the wheeldon v burrows rule?

Answer 76

Rule can be expressly excluded
Millman v Ellis- exclusion must be clear and the express grant of a lesser easement must not be taken as equivalent to the exclusion of grant of wider implied easement
Rule can’t be excluded if the use is inconsistent with the express terms of the conveyance (e.g. if Wheeldon use is passage through a gateway, but the conveyance requires erection of a solid fence where the gateway would be = inconsistent with the obligation of the conveyance)
Uses are subject to ellenborough criteria
Alleged use must be occurring prior to the sale
Rule applies to quasi-easements used by the owner of the whole land for the benefit of the part sold before the lease
Quasi easement must be continuous and apparent prior to the sale
Is continuous and apparent if it was used regularly & visible on inspection of the servient land over which it exists or so obvious that its use for the benefit of the part sold is beyond doubt (Wood)
Quasi easement must be reasonably necessary for the enjoyment of land
Browning-jack ‘reasonable enjoyment’
Wheeler v JJ - proposed easement unnecessary due to the existence of other access points to residence

Question 77

What is prescription?

Answer 77

Owner of would be dominant tenement establishes long use over would be servient land
If the use satisfies the ellenborough requirements, the long use can mature into an easement proper = legal
Gives rise to a presumption that a grant was made

Question 78

What are the conditions for obtaining an easement by prescription?

Answer 78

Only possible to arise from long use by a fee simple owner of the dominant tenement against a fee simple owner of the servient
- use must be nec clem, nec vi, nec precario

Question 79

Nec clem

Answer 79

without secrecy - Hidden use is not sufficient as a grant cannot be presumed
Open- of such character that an ordinary owner of land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware Union Lighterage v London Graving Dock

Question 80

nec vi (without force)

Answer 80

E.g forcible assertion or continued use in the face of protests of servient

Question 81

nec precario

Answer 81

Permission implied a mere licence
Servient tenement must acknowledg the right to use as opposed to consenting
There is a prebuttable presumption that long use was as of right unless the alleged servient owner can prove otherwise Welford v Graham
Odey v Barber- claim to prescriptive right of way failed because use of track had been with th permission of the alleged servient owner

Question 82

What is the exception for easements of light?

Answer 82

Easements of light do not have to fulfill common law conditions - may be established even where servient consents

Question 83

What are the methods of establishing an easement by prescription ?

Answer 83

Prescription at common law
Doctrine of lost modern grant
Prescription act 1832

Question 84

Prescription by long use

Answer 84

Long use can mature into an easement if it can be shown to have occurred continuously since before legal memory (fixed at yr 1189)
Use for 20 years presumes that the use commenced before 1189
Can be rebutted if there is evidence that the easement did not exist during some earlier period prior to the 20 years

Question 85

Presumption at common law via lost modern grant

Answer 85

Divides easements into easements of light & all other easements
S2 - period of 20 years’ use is sufficient to establish a prescriptive claim provided it was without interruption
Evidence that the right was not enjoyed in the period before commencement cannot defeat this claim

Question 86

Easements of light

Answer 86

S3- use of light for 20 yrs without interruption becomes absolute and indefeasible unless the servient consents in writing or by deed

Question 87

When can an easement be enjoyed up until ?

Answer 87

Easement can be enjoyed by current owner over the servient land up to the extent permitted by the terms

Question 88

In which 3 scenarios can the dominant owner’s use of easement go beyond the terms of the grant (dominant may be restrained by an injunction)

Answer 88

-Contradicting the limitations of the easements
-E.g easement limited to a right of way by pedestrians does not permit access with vehicles
-Easement must be enjoyed for the benefit of the dominant tenement, not any other land Harris v Flower
-Use impermissible if excessive
Activity on dominant land changes, increasing the intensity with which the easement in used
-McAdams Homes v Robinson - excessive use exists where characteristic of dominant land drastically changes

Question 89

When do easements cease to exist?

Answer 89

• The dominant and servient land comes into ownership and possession of the same person

-Release of easement by dominant tenement owner (express or implied through conduct)

-Abandonment (non use)

Question 90

What is a profits de prende?

Answer 90

Rights to enter another’s land and take for oneself the profit of the land
E.g. to enter and take fish
Can be created in the same way as easements
Profit can exist to confer a benefit on the dominant tenement or may exist in gross - person in benefit does not have to own land of their own
Legal profits are registrable with their own title