Land 3 - Easements Flashcards
What is the difference between a legal and equitable easement?
Legal:
- granted for equivalent of freehold or leasehold estate.
- Binds all
Equitable:
- not granted for a fixed time period.
- Binds if known
What is a positive and negative easement?
- Positive: use servient land in a particular way
- Negative: prevents servient owner from doing something on their land by giving dominant owner right to receive something
What are quasi-easements?
Potential easements - they would become easements if the land was divided e.g. a path
What is the overview process of determining if a right is an easement Or just a licence?
- Tests in Re Ellenborough Park
- Consider disqualifying factors
- Acquisition - expressed/implied/prescription
What are the tests in RE Ellenborough Park for determining if a right is an easement?
- Dominant & servient land (2 identifiable pieces of land, one with benefit and one with burden)
- Owned by different people
- proximity.
- Right must apply to land
- Right must Lie in Grant:
- capable grantor & grantee;
- capable of reasonably exact description; &
- judicially recognised
What rights have been judicially recognised as easements?
Right of
- way
- drainage
- support
- sport and leisure facilities
- recreational activities
For the right to ‘accommodate the dominant tenement’, what must be considered?
Determining whether there is direct beneficial impact on dominant land:
- benefit the land
- Affects nature, quality and use of land
- Right is not expressly personal
- Dominant and servient land are sufficiently proximate (can have a field in middle)
What disqualifying factors are there for easements?
- Exclusive Possession: can’t deprive servient owner of use of land - consider ouster principle & whether they have ultimate possession and control
- Payment: servient owner can’t be required to spend extra money for the right; servient must allow dominant tenement to carry out repairs at own expense
- Permission: initial permission allowed but right can’t be exercised with permission everytime
How is a legal easement expressly created?
- Created by deed
- For a certain term (freehold or leasehold)
- Where servient land is registered, easement must be registered
If not, may be an equitable easement if recognised as estate contracts:
- in writing
- contain all terms
- signed by both parties
What is necessary for an express equitable easement?
- Uncertain term
- In writing
- Signed by grantor
No registration needed (can be protected by notice)
What are the 4 methods of implied acquisition of easements?
- Necessity (landlocked land)
- Common Intention (land used for purpose E needed for purpose)
- Rule in Wheeldon v Burrows (grants only)
- S62 LPA 1925 (grants only)
What is ‘necessity’ for implied acquisition of easements?
Its existence is essential for use of dominant land
- Only used for rights of way to otherwise landlocked land
- Where land is inaccessible by vehicle i.e. only by foot, it can be deemed necessary
What is ‘common intention’ for implied acquisition of easements?
- Specific Purpose
- Purpose known to all parties
- Easement essential to achieve specific purpose
Where land sold/leased for a particular purpose and purpose can’t be achieved without the easement OR when it’s necessary for enjoying another expressly granted easement
Wong v Beaumont:
What is the Rule in Wheeldon v Burrows and its requirements?
- Only for grants (new owner)
- Quasi easement
- continuous and apparent (degree of permanence & some evidence as to its existence)
- Necessary for reasonable enjoyment of land (lower bar than necessity)
- In use at date of transfer
Where an owner sells/leases land, the new owner/tenant impliedly acquires all rights the original owner exercised i.e. quasi easements
(Will be a legal easement as read into transfer)
What is the effect of S62 LPA 1925? What are its requirements
Buyer/tenant receives benefit of all existing easements & informal rights can be ‘upgraded’ into full legal easements
- Only for grants, not reservations
- Prior diversity of ownership
- Informal permission/licence granted
- Conveyance of dominant tenement i.e. transfer deed or lease
Can also be used with quasi easements that are continuous and apparent
What is an implied legal easement?
Where an easement is implied into a transfer deed or a legal lease as the easement takes its status from the status of the document it is implied into
What is an implied equitable easement?
Where the easement were implied into a contract or an equitable lease
What are the requirements for enforcing an express legal easement for reg or in reg land?
- Duration: certain term or forever
- Created by deed
- Registered land: must be registered;
- Unregistered land: bind the world & overriding interest upon 1st registration
What are the requirements for enforcing an implied legal easement if there is a change in the subservient landowner in registered land?
- Duration: from document implied into
(Lease ends with lease, freehold goes on)
Overriding interest if:
- actual knowledge of new owner, or
- obvious, or
- exercised within last year.
- Volunteer/donee always bound
What are the requirements for an express/implied equitable easement on registered land to be enforced?
- Must be protected by notice on Charges Register to bind future servient owners
- always binds the grantor
- always binds someone gifted or inherited the land.
What are the requirements for an express/implied equitable easement on unregistered land to be enforced against new owner of survient land.
- must be protected by D(iii) Land Charge at Land Charges Register
- always binds the grantor
- always binds someone gifted or inherited the land.
What remedies are there for enforcing an easement?
- Prohibitory injunction
- Mandatory injunction (to remove obstruction)
- Damages in lieu of injunction or in addition
How long for prescription to create a legal easement and what will defeat it?
20 years uninterrupted reasonably regular use (1 yr = interruption)
Without:
- force
- secrecy
- permission
What is a legal easement
Reserved for ever or set period of time
If not, it will be an equitable easement
If an implied easement is implied into a tenancy document, when will the easement come to an end?
When the lease ends
What is a grant?
Person who sells land gives a right over the retained land.
What is a reservation?
The seller retains a right over the land sold.
How can easements be created?
- express creation
- implied creation
- prescription (20 years)
What is required for prescription?
- 20 years
- continuous user
- as a right
Not by: - force
- secrecy
- without permission
What are the dominant and subservient land?
- Dominant - benefits from right
- Subservient- burdened by right
What is required for a deed
- clear it’s intended to be a deed
- witnessed
- signed by grantor witness
- delivered (dated)
When is an implied legal easement enforceable in registered land?
- actual knowledge of new owner, or
- obvious, or
- exercised in the prior year.
When is an implied legal easement enforceable against the subservient owner for unregistered land?
Binds and becomes overriding interest on first reg. no need for notice or registration and doesn’t trigger registration.
What’s an express legal easement?
Expressed in a deed
What’s an express equitable easement?
Expressed in writing and signed by grants but falls short of a deed
What sort of easement does a common intention create?
- Applies to grants and reservations
- Applies legal easements into deeds and equitable easements into contracts.
What sort of easement does wheeldon v burrows create?
- Only creates grants
- Legal into deeds and equitable into contracts.
What sort of easement does necessity create?
Applies to grants and reservations (but rare for R)
If deed legal if contract equitable.
Is the easement enforceable if there is a change in dominant owner
Yes, the easement follows the land. It doesn’t matter if the one is registered or unregistered or if legal or equitable.
Can s62 and the rule in burrows be used for reservations?
No, only grants
