Land 3 - Easements - Creation

Question 1

What is the difference between a legal and equitable easement?

Answer 1

Legal:
- granted for equivalent of freehold or leasehold estate.
- Binds all
Equitable:
- not granted for a fixed time period.
- Binds if known

Question 2

What is a positive and negative easement?

Answer 2

• 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

Question 3

What are quasi-easements?

Answer 3

Potential easements - they would become easements if the land was divided e.g. a path

Question 4

What is the overview process of determining if a right is an easement Or just a licence?

Answer 4

1. Tests in Re Ellenborough Park
2. Consider disqualifying factors
3. Acquisition - expressed/implied/prescription

Question 5

What are the tests in RE Ellenborough Park for determining if a right is an easement?

Answer 5

1. Dominant & servient land (2 identifiable pieces of land, one with benefit and one with burden)
2. Owned by different people
3. proximity.
4. Right must apply to land
5. Right must Lie in Grant:
   - capable grantor & grantee;
   - capable of reasonably exact description; &
   - judicially recognised

Question 6

What rights have been judicially recognised as easements?

Answer 6

Right of
- way
- drainage
- support
- sport and leisure facilities
- recreational activities

Question 7

For the right to ‘accommodate the dominant tenement’, what must be considered?

Answer 7

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)

Question 8

What disqualifying factors are there for easements?

Answer 8

1. Exclusive Possession: can’t deprive servient owner of use of land - consider ouster principle & whether they have ultimate possession and control
2. 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
3. Permission: initial permission allowed but right can’t be exercised with permission everytime

Question 9

How is a legal easement expressly created?

Answer 9

1. Created by deed
2. For a certain term (freehold or leasehold)
3. 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

Question 10

What is necessary for an express equitable easement?

Answer 10

1. Uncertain term
2. In writing
3. Signed by grantor
   No registration needed (can be protected by notice)

Question 11

How long for prescription to create a legal easement and what will defeat it?

Answer 11

20 years uninterrupted reasonably regular use (1 yr = interruption)

Without:
- force
- secrecy
- permission

Question 12

What is a legal easement

Answer 12

Reserved for ever or set period of time

If not, it will be an equitable easement

Question 13

If an implied easement is implied into a tenancy document, when will the easement come to an end?

Answer 13

When the lease ends

Question 14

How can easements be created?

Answer 14

• express creation
• implied creation
• prescription (20 years)

Question 15

What is required for prescription?

Answer 15

• 20 years
• continuous user
• as a right
  Not by:
• force
• secrecy
• without permission

Question 16

When is an implied legal easement enforceable in registered land?

Answer 16

• actual knowledge of new owner, or
• obvious, or
• exercised in the prior year.

Question 17

When is an implied legal easement enforceable against the subservient owner for unregistered land?

Answer 17

Binds and becomes overriding interest on first reg. no need for notice or registration and doesn’t trigger registration.