Land 3 - Easements

Question 1

Profit

Answer 1

Right to go and remove something that exists naturally.

Question 2

Legal?

Answer 2

Capable
Right must be granted
-an estate in fee simple absolute in possession (forever)
-term of years absolute (leasehold)
Has to be certain

Deed required - s52(1) LPA 1925
Can be created without

Question 3

Requirements

Answer 3

Dominat and servient tenement
Must accommodate dominant
Must not be owned by same person
Must be capable of forming subject matter.

-Any attempt to create without dominating will create a license only

-Right must be connected with normal enjoyment. Question of fact Close enough to establish connection.

-Right must benefit land itself and not just owner in personal capacity.

-Must be different people ‘principle of diversity’

-Must be capable of forming subject matter of the grant - subject matter, grant and grantor
(reasonably exact definition, must not involve expenditure by servient, must not be so extensive as to amount to joint possession, cautious when claim for new type of negative easement).

Exact definition;
Not general flow of air. Clearly defined.
Light sufficiently definite and enjoyed via defined aperture (window).
No right of view.
Can be for recreational use

Expenditure by servient’
No obligation towards maintenance.

Not extensive as to amount to joint possession;
Temporally (amount of time taken)
Spatially (amount of space used)
Right to park if sufficiently large.

Cautious of negative easements;
Cannot burden the servient to do something.

Question 4

Creation

Answer 4

Express grant/reservation - executes a deed

Implied by necessity - land-locked.
Cannot be used at all.
Cannot be alternative means of access.

Implied by common intention -
Common purpose known to parties, right claimed is needed in order for common purpose to be fulfilled.

Wheeldon v Burrows -
Only to grant of easement
Converts ‘quasi’ into full.;
-the existence of a quasi-easement prior to the sale
Right over own land.
-Continous and apprarent
Some form of habitual enjoyment. Careful inspection by a person ‘ordinarily conservant with the subject.
-Right mustt be necessary to reasonable enjoyment - If alternative (which is safe) may be refused.
-must be in use at time of sal.

No requirement for conveyance, contract recognised in equity will suffice.

S62 LPA 1925 -
must be a conveyance (written document that has effect of transferring estate).
Some diverts of occupation at time of grant (does not apply to light or continuous and apparent).
Existing privilege at date of conveyance.
Right must be capable of being an easement or profit.

Look for - existing license and permission and subsequent conveyance. Must be diversity of occupation (unless continuous and apparent)

Prescription - 20 years

Must show

Exercised continuously - can be intermittent

As of right - without force secret or permission (toleration does not count)

Three methods

Common law - since 1189. Can be rebutted by showing at time since ;
right was not exercised
right could not have been exercised
dominant and servient vested in same owner.

Doctrine of lost modern grant;
common ownership since 1189
Presumed on grant being lost.

Prescription Act 1832;
Use as of right for 20 years (30 for profits) willl obtain.
Uninterrupted enjoyment.
Counted back from date of action.
Interruption restarts.