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SQE > Land: Easements ✅ > Flashcards

Land: Easements ✅ Flashcards

1
Q

What are easements?

A

Proprietary rights to use land which belong to someone else. Use more limited that exclusive right to occupy and use.

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2
Q

Legal Easement LPA?

A

s1(2)(a) - certain duration i.e. equivalent to freehold or leasehold.

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3
Q

Equitable Easement LPA?

A

s1(3) - uncertain term - all other estates, interests and charges on or over land take effect as equitable interest.

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4
Q

Easement by GRANT means?

A

When owner sells land they give buyer an easement over the land they are retaining.

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5
Q

Easement by RESERVATION means?

A

When owner sells land they reserve an easement over buyer’s land to ensure continued use.

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6
Q

THREE ways of creating an easement

A

Express Creation
Implied Creation
Prescription

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7
Q

What are the rules re Prescription?

A

= legal easement

Must be freehold
20 years minimum
Continuous - regular, no interruption for 1year/more
Not by force, secrecy or permission.

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8
Q

Example of force which means not prescription?

A

sign up in Car Park saying private, for use of club patrons only. Customers of fish and chip shop used car park - this was not easement by prescription as car park not used as of right, was instead used by force.

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9
Q

THREE requirements for easement

A
  1. CAPABLE OF BEING EASEMENT
  2. NOT PREVENTED BY ANY OF THE DISQUALIFYING FACTORS
  3. ACQUIRED AS EASEMENT
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10
Q

CAPABILITY rules (Re Ellenborough)

A
  1. Dominant and Servient
  2. Benefits Dominant Land
  3. Diversity of Ownership
  4. Must ‘lie in grant?
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11
Q

Meaning of easement benefiting dominant land?

A

Must benefit LAND not simply benefit business C carrying out on land.

Where business has become normal use of that land i.e. long-established benefit then might become easement e.g. sign on adjoining building pointing to shop in alley.

Servient and dominant land but be proximate i.e. close enough for dominant land to derive benefit - does not need to be adjoining.

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12
Q

Questions to ask re does is BENEFIT dominant land?

A

Does the right benefit any owner of the land? (must not be expressly personal)

Does it cease to be of use once the dominant owner has parted with the land?

Does the right make the dominant land a better or more convenient property?

Does the right add value or amenity to the dominant land?

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13
Q

Meaning of no common ownership?

A

Cannot have easement over own land (i.e. quasi-easement) – although such quasi-easements are capable of becoming easements if land later partitioned

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14
Q

Meaning of right must lay in grant?

A
  1. Grantor capable of giving it - power to grant, 18/+, own legal estate, grantee capable
  2. Capable of reasonably exact description - i.e. not ‘right to a scenic view’
  3. Judicially recognised
    — right of way
    — right of drainage/other rights through pipelines
    — right of support
    — right to use sporting and leisure facilities
    — right to use land for recreational purposes

^^ list not exhaustive - although new NEGATIVE easements will not be recognised.

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15
Q

What are the THREE disqualifying factors?

A
  1. EXCLUSIVE POSSESSION
  2. Exercise of right involves additional, unavoidable EXPENDITURE by the servient owner
  3. Exercise of right depends on PERMISSION by servient owner.
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16
Q

Meaning of Exclusive Possession?

A

Two TESTS:

  1. OUSTER PRINCIPLE - does b have ‘reasonable use’ left of land? If not, cannot be easement.
  2. POSSESSION AND CONTROL - does servient owner retain ultimate possession and control of servient land, subject to reasonable exercise of right.

Use the Bachelor test in Moncrieff way! – was servient owner deprived of reasonable use - will not be if could still do anything he liked on the servient land except interfere with the right.

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17
Q

Extend of EXPENDITURE disqualification?

A

Spending extra money required = disqualified from being easement.

Servient owner not obliged to carry out repairs/maintenant to enable dominant owner to enjoy easement, but must allow dominant owner onto servient land to carry out repairs at dominant owner’s expense.

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18
Q

Meaning of no permission

A

Usual for first use of easement to be by permission, but importantly, should then use easement and exercise its benefit AS OF RIGHT.

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19
Q

How is EXPRESS legal easement created?

A

= for certain term or forever

s52 LPA = deed needed

s1 LP(MP)A = deed on face, signed by grantor and witnesses, dated

Reg land - must be registered -> notes on property register of dominant land and charges register of servient land.

Unreg - legal easements are overriding so do not need to be substantively registered.

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20
Q

How is EXPRESS equitable easement created?

A

Easement for uncertain duration.

s53(1)(a) = minimum requirements for equitable easement = writing, signed by person creating interest in land.

No substantive registered needed for equitable easements to exist.

21
Q

Impact of Failed Easements?

A

Where fall under s1(2)9a) LPA but not created correctly, may be recognised in equity as ESTATE CONTRACTS (i.e. contact to grant a legal easement)

Need to follow s2 LP(MP)A
- contain all agreed terms terms
- in writing
- signed by both parties

22
Q

Four means of implied creation of easement?

A

Necessity
Common Intention
Wheeldon v Burrows
s62 LPA

23
Q

What does the status of implied easement come from?

A

status of document implied into

  • implied legal easement - easement implied into transfer deed or legal lease
  • implied equitable easement - easement implied into contract or equitable lease.
24
Q

Requirements of NECESSITY rule?

A

V narrow

Can be implied by necessity where existence ESSENTIAL in order to make ANY use of dominant land

i.e. only RIGHTS OF WAY TO OTHERWISE LANDLOCKED LAND

  • even if difficult/inconvenient, alternative access route will mean implied easement not essential.
  • similarly drainage, sewerage and supply of electricity, though advantageous, are not essential to make any use of land.
  • note case where right of way on foot over land, and claim for vehicular right of way succeed in case of domestic property where no vehicular right of way reserved due to historical conveyancing error.
25
Q

Does NECESSITY rule apply to grant and necessity?

A

Yes - both (although latter rare

26
Q

Does implied acquisition by COMMON INTENTION apply to grants and reservations?

A

YES - both (although reservation = v rare)

27
Q

THREE requirements of acquisition by common intention?

A
  1. Land sold/leased for particular purpose (general intention not enough, must be definite, specific, particular)
  2. Purpose known to both parties
  3. Easement essential to achieve common purpose.

May be implied by common intention where necessary for enjoyment of some expressly granted easement.
e.g. landlord granted lease with 2 covenants - that must only be used as restaurant and must comply with H&S regs. Premises could not operate as restaurant without complying with H&S regs. Ventilation essential for this compliance. Covenant to only use as restaurant also.

For implied reservation, HEAVY BURDEN to show specific easement mutually intended - not enough that seller/landlord had openly exercised right before first transaction.
- refusal of implied reservation where landlord had TWO opportunities to reserve it expressly and didn’t do so (1) in OG lease and (2) in deed of variation of lease.

28
Q

Does implied acquisition under WHEELDON apply to grants and reservations?

A

GRANT only, not implied reservations!

29
Q

What is summary of what WHEELDON is?

A

“all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of grant used by the owners of the entirety for the benefit of the part granted” - implied under rule where owner (A) sells or leases some of their land to an owner or tenant.

30
Q

FIVE requirements of implied acquisition under WHEELDON v BURROWS?

A
  1. Only applies where right being claimed would have been a GRANT to the claimant
  2. Right must have been ENJOYED AS QUASI-EASEMENT by the seller or the landlord BEFORE the land was divided
  3. Quasi-easement must have been CONTINUOUS AND APPARENT (both required - apparent means evidence on land that it exists if carefully inspect land)
  4. Quasi-easement must be necessary for the reasonable enjoyment of the dominant land

[ 💼 Wheeler v JJ Saunders] C bought farmhouse, D bought adjoining field from same seller. Two means of access t ofarmhouse, one across D’s land. Access had been used as quasi-easement when farmhouse and field were under common ownership.
HELD that although other Wheeldon tests were met, the easement was not necessary for the reasonable enjoyment of the farmhouse as the other access was equally convenient

  1. The quasi-easement must be in use by the COMMON OWNER AT DATE OF TRANSFER/LEASE of the dominant land

In practice often operation of rule in Wheeldon expressly excluded from transfers, contracts and leases.

31
Q

Implied acquisition under LPA s62 - grants and reservations?

A

Grants only, not reservations

32
Q

What will s62 imply easement into (what document)?

A

Into a CONVEYANCE (i.e. deed) but not into a contract.

33
Q

What is ordinary effect of s62 LPA 1925?

A

📖 s62 LPA 1925: ‘a conveyance of land includes all easements, rights and advantages enjoyed with that land.

conveyance = transfer or lease of land by deed

‘ordinary’ interpretation > it’s a word-saving provision, ensures when someone buys freehold land or leases land, buyer/tenants will receive benefit of all existing easements which affect that land, whether expressly or impliedly granted.

34
Q

Upgrade effect of s62?

A

s62 has been interpreted as a method by which a brand-new easement can be implied into a document i.e. ‘upgrades’ informal rights into full legal easements.

[ 💼 Wright v Macadam Mrs W was tenant of part of house owned by Mr M. During tenancy, M gave W informal permission to store coal in part of his shed which was on his retained land. When W’s lease came tto end, M granted new one by deed. New lease did not mention use of shed. M tried to charge W for use of shed, and she claimed easement of use of shed which could claim without payment.

Yes - s62 operates to imply the informal right to use the shed into the new lease as a full legal easement. (unclear why informal permission did not simply imply informal permission into the document).

35
Q

Requirements of s62 upgrade effect?

A
  1. Only applies where right being claimed would have been a GRANT
  2. Must have been PRIOR DIVERSITY OF OWNERSHIP of the dominant and servient land
  3. An INFORMAL PERMISSION OR LICENCE must have been granted to the occupier of the dominant tenement to use the servient land in some way
  4. There must have been a CONVEYANCE (i.e. transfer by deed or legal lease) of the dominant tenement.

Note: 2, 3, and 4 are sequential ⏰, so need firstly, prior diversity of ownership of two pieces of land, following division, then need informal permission granted, and then subsequent conveyance of dominant tenement, informal permission can be upgraded to easement at this point and implied into conveyance!

36
Q

Does s62 create implied legal easement or implied equitable easement?

A

s62 creates implied LEGAL easement, as implied easements take status of document implied into Operation of s62 LPA 1925 in this respect is excluded as a matter of routine in property deals, to avoid any unintended consequences.

37
Q

Is requirement of PRIOR DIVERSITY OF OCCUPATION of dominant and servient land necessary?

A

More recent cases suggest that requirement of prior diversity of occupation of the dominant and servient land is not necessary where the right is continuous and apparent.

[ 💼 P&S Platt v Crouch - s62 will apply to Wheeldon v Burrows situations where land has been divided for first time ie.. no prior diversity of occupation
Crouch family owned hotel on riverbank and island midstream, family and hotel moor boats on jetty on shore of island. Use could be said to be quasi-easement as family owned island and land, so could potentially be enjoyed as easement if diversity of ownership ever came around. Crouch fam sold hotel to P, but retained island. Transfer deed did not contain any easement relating to island.
s62 LPA did not simply operate on pre-existing landlord and tenant situations; also quasi-easements which as ‘continuous’ and ‘apparent’.
[ 💼 Wood v Waddington
^^ these cases simply widen the scope of the statutory provision even further, but it still applies to Wright v Macadam situations :)

38
Q

What are the TWO applications of s62 LPA 1925?

A

Prior diversity of ownership, e.g. Wright v Macadam situation. Here easement will be implied when lease has expired and land re-led to same tenant; or to different tenant, or may even be sold to same or different owner.

Applies to quasi-easement like P&S Platt Crouch to imply easement into first lease or transfer deed. Right must be continuous and apparent i.e. exercised recently and regularly. Must be some expectation that will be used regularly in future. NMust be some physical evidence of exercise of right.

39
Q

If dominant land changes hand, does benefit pass with transfer of land?

A

Yes - benefit is part of land. It does not matter whether easement is legal or equitable, or whether land is registered or unregistered. BENEFIT WILL PASS WITH DOMINANT LAND.

s205(ix) LPA 1925 - land includes an easement, right, privilege or benefit in, over or derived from land.

s62(1) LPA - a conveyance of land shall be deemed to include and shall by virtue of this Act be deemed to convey, with the land, all easements, rights and advantages whatsover.

40
Q

Requirement for express Legal easement in registered land?

A

Must be registered in order to be legal easement, so will always be enforceable against new servient owner

41
Q

Express Legal easement in unregistered land

A

Enforceable since ‘legal interests bind the world’
and on transfer of servient land (which triggers compulsory first reg) the express legal easement will be an interest overriding the first reg and will be noted on the charges register of newly registered servient land Sch1 para3 LRA 2002.

42
Q

Express Equitable Easement in Registered land?

A

Enforceable since ‘legal interests bind the world’
and on transfer of servient land (which triggers compulsory first reg) the express legal easement will be an interest overriding the first reg and will be noted on the charges register of newly registered servient land Sch1 para3 LRA 2002.
Will always be enforceable against grantor, but must be protected to be enforceable against new servient owner – by notice entered into charges register of servient land (s32 LRA) If this done, then binding on new owner.

If not done, easement is not binding on purchase for value but will bind volunteer (whether protected or not).

43
Q

Express Equitable easement in unregistered land?

A

Must be protected to be enforceable against new servient owner - Class D(iii) Land Charge must be entered in LC Register,

If done, easement binding on the new owner as this = actual notice.

If not done, easement not binding on purchaser for money or money’s worth of legal estate. BUT volunteer will be bound

44
Q

Implied Legal easement in registered land?

A

Will be overriding interest LRA 2002, Sch3 para3 provided:
Actual knowledge OR reasonably careful inspection obvious OR exercised within 📅 1 year before transfer of servient land

45
Q

Implied legal easement in unregistered land

A

Enforceable in the same was as express legal easement over unreg land i.e. legal interest binds the world and as overriding interest on first registration of land.

46
Q

Implied equitable easement in registered land?

A

Same rules as express equitable easement

V vulnerable to being defeated when servient land sold as unlikely will protect it

47
Q

Implied equitable easement in unregistered land?

A

Same rules as express equitable easement

V vulnerable to being defeated when servient land sold as unlikely will protect it

48
Q

Is someone stoped another using valid and enforceable easement, what remedies are available?

A
  1. prohibitory injunctions to prevent interference with enjoyment of the easement
  2. Damages in lieu of injunction or in addition to it
  3. Mandatory injunction to remove obstruction

SQE (14 decks)

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