Land 8

Question 1

What is the servient tenement?

Answer 1

The land which takes the burden of an easement

Question 2

What is the dominant tenement?

Answer 2

The land which takes the benefit of an easement

Question 3

What are the four essential characteristics of an easement?

Answer 3

1. There must be a dominant and servient tenement2. Easement must benefit the dominant land, not just the owner/occupier personally3. Dominant and servient land must be in separate ownership4. Right must be capable of being an easement and described sufficiently to identify it

Question 4

Can a personal right to swim in a neighbour’s pond be an easement?

Answer 4

No, it is a personal right and does not benefit the land.

Question 5

A owns a piece of land and allows B to sit on the land to paint pictures of the nearby scenery. Is this an easement?

Answer 5

No, B’s right is merely a personal right (probably a licence), as it confers no benefit on the land.

Question 6

A allows B to drive across A’s land to get to the public highway. Is this an easement?

Answer 6

Yes because it is a right that benefits B’s land. This right would probably add value to B’s land when he sells it.

Question 7

What is the question to ask when considering whether something is capable of being an easement?

Answer 7

Does it make the dominant tenement a more attractive or convenient landholding

Question 8

What are the form requirements for a legal easement or legal profit?

Answer 8

Must be:1. For equivalent of a fee simple absolute or terms of years absolute2. Created by deed

Question 9

What does it means that a legal easement or legal profit must be for equivalent of a fee simple absolute or terms of years absolute?

Answer 9

It must last either for a fixed period, or forever

Question 10

Can an easement or proft be granted for life?

Answer 10

No, it is not a fixed period or forever.

Question 11

What two conditions must be met for equity to recognise an easement or profit not created by deed?

Answer 11

1. In writing incorporating all terms expressly agreed2. Signed by both partiesSame as exception to non-short lease not by deed.Note, the grant is ineffective in law but equity recognises that an enforceable contract to grant an easement/profit has been created.

Question 12

What type of easement will the long recognise by long use (prescription)?

Answer 12

Legal easement

Question 13

What are the four ways an easement can be created?

Answer 13

1. Express grant or reservation2. Implied grant or reservation3. Prescription4. Statute (rare)

Question 14

How are easements created by ‘express grant or reservation’?

Answer 14

A landowner selling a plot will:* grant rights to benefit the land being sold.* reserve rights over the land being sold for the benefit of the retained land. Usually these rights will be stated in the transfer and are therefore ‘express’ rights. If rights are conferred in a separate deed of easement between two or more landowners, these will also be rights that have been created expressly.

Question 15

How are easements created by statute?

Answer 15

By statute, a conveyance of land includes, among other things, all ‘liberties, privileges, easements, rights, and advantages appertaining to the land’. * As such, easements and profits appurtenant should pass even if they are not specifically mentioned in the transfer document. * This only applies to grants, not reservations for the benefit of the land retained by the seller* The rule is subject to four conditions.| LPA 1925 s62

Question 16

Under section 62 of the Law of Property Act 1925, what type of easements and profits will pass under statute even if not specifically mentioned in the transfer document, and does this apply to grant and reservation?

Answer 16

Easements and profits appurtenant.Just grant.

Question 17

What are the four conditions for section 62 to apply?

Answer 17

1. Right is capable of being an easement2. Grant is within competence of grantor3. Use must not be excessively personal, excessively precarious, merely temporary, or a mere memory4. A contrary intention is not expressed

Question 18

When does implied grant or reservation arise?

Answer 18

When the parties have not expressly created necessary easements as part of the conveyance of part of a landholding. They may be:1. Easements by necessity2. Intended (but not executed) easements (also called ‘common intention easements’)3. Ancillary easements4. Easements implied by existing use

Question 19

When will an easement be implied by necessity?

Answer 19

Where a parcel of land is landlocked by the seller’s land, a right of way over servient land will be implied in order to access the dominant parcel

Question 20

From what will an ancillary easement arise?

Answer 20

From the realities of the circumstances, e.g. grant of right to take water from a spring implies an ancillary right of way to that spring

Question 21

What are the three requirements for an easement by existing use to be implied on sale/transfer?

Answer 21

Easement must be:1. Continuous and apparent2. Necessary to the reasonable enjoyment of the land acquired3. Was used by the seller for the benefit of the land at the time of conveyance

Question 22

Will an easement generally be implied in favour of the party granting the rights, and why?

Answer 22

No, because if they wanted to reserve something in their favour, they had all the knowledge to do thisExceptions:* Easements by necessity* Intended easements

Question 23

What are the two exceptions to the rule that easements generally will not be implied in the favour of the party granting the rights?

Answer 23

1. Easement by necessity2. Intended easement

Question 24

What are the two requirements for an easement to arise by prescription?

Answer 24

Party has used the benefit:1. Unchallenged for 20 years, and2. As of right, i.e. without permission or making payment

Question 25

What are the three avenues under which a right can be acquired by prescription?

Answer 25

1. Common law (20 years’ use gives rise to rebuttable presumption it has been used from time immemorial giving lawful origin)2. Lost modern grant (after 20 years, court pretends you had a grant and lost it)3. Prescription Act 1832 (based on either 20 or 40 years’ use, complex provisions distinguishing between easements of right and other types)

Question 26

What is the status of an easement arising by common law prescription or through the doctrine of lost modern grant?

Answer 26

They are legal interests

Question 27

If title is registered, where will (1) the benefit and (2) the burden of easement appear?

Answer 27

Benefit: Notice on property register of dominant land Burden: Notice on charges register of servient land

Question 28

When will easements (except those by prescription/implied grant or reservation) and profits in the registered system bind a buyer?

Answer 28

When they are registered

Question 29

What is the consequence of not registering a right which arises by express grant or reservation?

Answer 29

It will take effect in equity only, it will not take effect as a legal interest, and will not override as an equitable interest

Question 30

If and easement was not expressly created e.g. was created by implied grant or reservation, including implication under section 62 of the Law of Property Act 1925, or by prescription, when will it override?

Answer 30

• If it is merely equitable, it will not override* If it is legal, it will override only if certain conditions are satisfied.

Question 31

What is required for a legal easement or profit to bind a buyer in the unregistered system, and why?

Answer 31

Nothing, because legal interests are automatically binding on the world

Question 32

What is required for an equitable easement to bind a buyer in the unregistered system?

Answer 32

Registration as a D(iii) land charge

Question 33

Creation of Easements and Profits Summary

Answer 33

Grant (i.e. for the benefit of the land being sold)* Express (in deed or transfer)* By statute (transfer may carry with it existing rights)* Implied (Necessity/Common intention/Implied by existing use)* Prescription (Common Law/Lost Modern Grant/Statute: Prescription Act 1832)Reservation (i.e. for the benefit of retained land)* Express (in deed or transfer)* Implied (Necessity/Those that the parties inteded - very limited in scope)