Land: Easements

Question 1

Once an easement is created, who is obliged to maintain it?

Answer 1

neither the servant or dominant owner is liable to maintain or repair it unless the terms of the grant/reservation say otherwise

Question 2

Can you have an easement of the right to light

Answer 2

YES, is a recognised negative easement but there is no general right to light, must be via a defined aperture

Question 3

Definition

Answer 3

a right/privilege in/over land for an interest equivalent to an estate in fee simple absolute in possession for a term of years absolute

Question 4

How can an easement be legal?

Answer 4

Capable under s1(2) LPA 1925
Deed required (clear on the face, signed, witnessed, delivered)

Question 5

Enforceability of legal easement in unregistered land

Answer 5

Unregisterable disposition (pre 1926 rules-legal interest bind the world irrespective of notice)
In express/implied

Question 6

Enforceability of legal easement in registered land

Answer 6

Express grant/reservation: register as restriction at LR before new owner registered

Implied/prescription: overriding interest under Sch3 para 3 if:
1. buyer had actual knowledge
2. easement obvious on a reasonably careful inspection
3. easement used by person entitled in year prior to sale

Question 7

When can an equitable easement arise

Answer 7

if s1(2) not satisfied eg. easement fro an uncertain duration

Question 8

formalities for creation of equitable easement

Answer 8

signed writing (by both parties)

Question 9

Enforceability of equitable easement in unregistered land

Answer 9

class D(iii) land charge on LCR in name of estate owner by date of conveyance
OR
pre 1965: enforceable against anyone but equities darling

Question 10

Enforceability of equitable easement in registered land

Answer 10

interest affecting a registered estate-register as notice on charges register of owners title

Question 11

How else may an easement be created in equity

Answer 11

as an estate contract if theres certain duration and signed writing but no deed

Question 12

Essential Characteristics

Answer 12

1. must be a dominant and a servient tenement
2. An easement must ‘accommodate’ (benefit) the dominant tenement
3. dominant and servient tenements not both owned and occupied by the same person
4. Easement capable of forming the subject matter of a grant. (ie. Must be capable of being granted by deed/precise definition )

Question 13

meaning of dominant and a servient tenement

Answer 13

2 parcles of land, on benefits from easement, one has the burden of it.

Question 14

meaning of ‘An easement must ‘accommodate’ (benefit) the dominant tenement’

Answer 14

Easement connected with normal enjoyment of the property
◊ Does it improve marketability of the land?
◊ Would any owner see it as a benefit?

Question 15

What to consider when deciding if the easement is capable of forming the subject matter of a grant.

Answer 15

a) Capable of reasonably exact definition (not too vague)
b) No expenditure by servient owner (EXCEPT right to fencing=right to require owner of adjoining land to keep boundary fence in repair)
c)Must not be so extensive to amount to claim to joint possession of the servient tenement (must exclude grantor completely temporally and spatially)
d)Law cautious when it comes to claim for new type of negative easement

Question 16

Can you have an Easement of parking

Answer 16

Wouldn’t be recognised IF would leave servient owner without reasonable use of their land

Question 17

Ways to create a valid easement

Answer 17

1. Express grant or reservation
2. Implied by necessity
3. Implied by common intention
4. Wheeldon v Burrows
5. s 62 LPA 1925
6. Prescription

Question 18

What methods of easement creation apply both to grant and reservation?

Answer 18

Express
Implied by necessity
Implied by common intention

Question 19

What methods of easement creation apply only to grant NOT reservation

Answer 19

Wheeldon v Burrows
s 62 LPA 1925

Question 20

Explain express grant or reservation

Answer 20

○ Servient owner knowingly and deliberately executes deed granting dominant owner an easement over land owned by servient owner

Question 21

meaning of reservation

Answer 21

=where person sells part of their land and wishes to retain rights over the land they’re selling

Question 22

When will an easement be implied by necessity

Answer 22

Sale of landlocked land which cant be used without easement
NO alternative means of access,

Question 23

When will an easement be implied by common intention

Answer 23

when land conveyed for known purpose any easement over land retained by grantor which is essential for the purpose the land was sold is implied into the grant in favour of the grantee

Question 24

requirements for Wheeldon v Burrows

Answer 24

1. existence of quasi-easement prior to sale
2. Right is continuous and apparent
3. Right is necessary for the reasonable enjoyment of the land sold
4. right is in use at time of sale

Question 25

Wheeldon v Burrows: meaning of ‘Right is continuous and apparent’

Answer 25

◊ Habitual enjoyment obvious from inspection of land.
◊ The feature must neither transient or intermittent eg. drains or a path.

Question 26

What is the effect of s62?

Answer 26

Operates to pass to buyer all existing rights without needing formal words in conveyance (unless something stated contrary in deed).
Could also means that ppl who have licence may end up with an easement as a result of a conveyance

Question 27

Requirements for s62

Answer 27

1. Must be conveyance
2. diversity of occupation at time of conveyance of part (UNLESS light-must be continuous and apparent)
3. existing privilege at date of conveyance
4. right capable of being an easement or profit (ie. Satisfy Re Ellenborough park)

Question 28

What is a conveyance

Answer 28

legal doc creating/transferring legal estate

Question 29

What is prescription?

Answer 29

Where dominant owner can show use of right for 10y, court will uphold right (creating easement) by presuming it had a lawful origin

Question 30

What must be satisfied before there can be a possibility of an easement by prescription?

Answer 30

COMMON LAW CONDITIONS
a) Right exercised by/on behalf of see simple owner against simple owner (ie. Both freehold)
b) Continuously (can be multiple freehold owners, may be intermittent)
c) AND as of right

Question 31

Prescription: meaning of right exercised ‘as of right’?

Answer 31

Right exercised without…
Force (nec vi) ie. Removal of obstructions
Secrecy (nec clam) such that a reasonable person in position of servient owner would have a reasonable opp. to discover right asserted
Permission (nec precario) (inc. payment, written, verbal)

Question 32

Once the common law conditions are met, how may an easement be created?

Answer 32

a) Common law prescription: Rebuttable presumption that user for 20y or more is proof of use since time immemorial (1189)

b) Doctrine off lost modern grant: right enjoyed continuously for 20y, it was assumed that there had been a deed granting the right but that the deed had been lost.

c) Prescription Act 1832: dom owner can show user as of right (uninterrupted enjoyment) for 20y (30 for profits) they’ll obtain prescriptive easement even though user clearly commenced after 1811

Question 33

What interruptions will prevent a claim under the Prescription Act 1832

Answer 33

over a year