Land - Easements (5) Flashcards
What are easements?
Easements: Easements are rights attached to ‘dominant’ land over corresponding ‘servient’ land. They are usually positive, but can be negative. They can also be legal or equitable.
(1) Positive Easement: A right to use the servient land (i.e. a right of way).
(2) Negative Easement: A right that restricts the use of the servient land for the benefit of the dominant land (i.e. right to light).
What are the four essential characteristics of an easement?
Essential Characteristics: Easements must satisfy four characteristics to be valid (Re Ellenborough Park).
Dominant and Servient Land
Dominant and Servient Land: Must be able to identify land that is benefitted by the easement and one that is burdened.
Easement Accommodates Land
Easement Accommodates Land: The easement must benefit the land itself, not merely the landowner.
(1) Accommodation: The easement affects the nature, quality, use, or value of the land (P&A Swift).
(2) Proximity: The dominant and servient land must therefore be spatially proximate (Bailey v Stephens).
Diversity of Occupation
Diversity of Occupation: The lands must be owned or occupied by different people - the easement is extinguished if the land falls under common ownership (Metropolitan Railway v Fowler).
Capable of Lying in Grant
Capable of Lying in Grant: The easement must be capable of lying in grant, meaning that it could form the subject matter of a valid deed.
(1) Right to Grant: The original parties must have had a right to create the easement, meaning that they owned the land and were sui juris.
(2) Specific Right: The easement must convey a tangible right, more than a ‘mere right to recreation’ on the land.
>Parks and sport facilities are sufficiently tangible (Regency Villas v Diamond Resorts).
>Easements are capable of being shared by multiple parties (Wright v Macadam).
(3) Non-Restrictive: The easement cannot be too restrictive, meaning it cannot deprive the servient landowner of their reasonable use of the land (Moncrieff v Jamieson).
Parking: If the right to park merely provides limited use of a small part of the land, it is valid (London v Ladbroke). If it amounts effectively to exclusive possession of the land, it is invalid (Copeland v Greenhalf).
(4) Non-Vague: Easements cannot be too wide or too vague.
Right to Light: A right to light must be very narrow, i.e. a right to light through a specific aperture, not the entire property (Colls v Home).
Right to View: A right to a view is too wide, and too restrictive.
How are easements expressly created?
Express Creation: Easements can be expressly created, usually in a sale of part.
(1) Legal: Legal easements must be expressed in fee simple absolute in possession, or a term of years absolute (forever or a fixed period) (s1(2) LPA), and must be created by deed (s52 LPA).
>Clear on face as a deed, signed, witnessed and dated (s1 LPMPA).
(2) Equitable: Equitable easements are those that do not meet the above criteria, granted by contract (s53 LPA).
>Conveyed in writing, containing all express terms, and signed by both parties (s2 LPMPA).
How are easements impliedly created?
Implied Creation: Easements can be impliedly created, usually in a sale of part.
(1) Seller: A seller of part may retain an easement through strict necessity and common intention.
(2) Buyer: A buyer of part may be granted an easement through strict necessity, common intention, the rule in Wheeldon v Burrows, and under s62 LPA.
Strict Necessity
Strict Necessity: Easements are created by strict necessity where, upon sale, use of the land would not be otherwise possible (Manjang v Beumont).
(1) Necessity: Necessity implies more than ease. For example, if part of the land now becomes ‘landlocked’ by the entirely surrounding other part, a right of way will be implied by strict necessity (Adealon v Merton).
Common Intention
Common Intention: Easements are created by common intention provided both parties intended the sold or retained land to be used in a certain way, and an easement is necessary to fulfil this (Wong v Beaumont).
(1) Necessity: Again, this requires necessity, but only to fulfil the intention. For example, if a cellar was sold for the purpose of opening a kitchen, an easement allowing ventilation above ground is implied to fulfil that purpose.
Wheeldon v Burrows
Wheeldon v Burrows: Easements may be created when a seller’s former use of the part of the land they retained is ‘upgraded’ for the use of the buyer (Wheeldon v Burrows).
(1) Continuous and Apparent: The seller exercised a ‘continuous and apparent right’ over the retained land from the sold land before sale. This means it is reasonably apparent on inspection, i.e. a worn path (Borman v Griffiths).
(2) Necessary for Enjoyment: The right must be necessary for reasonable enjoyment of the sold land, a lower threshold than strict necessity.
(3) Capable of Easement: The seller’s former use must be capable of forming an easement.
>For example, the seller crossed their field from their house to get to the mainroad. If they sell the house but retain the field, the buyer may cross the field, as it has been upgraded to an easement of necessary enjoyment.
>However, if the seller retains the house and sells the field, they cannot use the field, as only buyers may make use of this rule.
Section 62 LPA
Section 62 LPA: Easements are created by implication when a licence is ‘upgraded’ on conveyance of part (s62 LPA).
(1) Licence: A licence capable of being an easement will be upgraded to an easement when the benefited land is conveyed, including a renewal of a lease. Need not be necessary for enjoyment. Can be excluded in lease.
>For example, the landowner leases the upstairs of their house to a tenant. During this time, they permit the tenant to use their shed to store items. When the lease is renewed, the licence is upgraded to an easement.
(2) Diverse Occupation: The conveyed land must already have been occupied by a different person to the burdened landowner when the licence was in use (Payne v Inwood).
(3) Recent Use: The licence must have been exercised within 11 months of the conveyance (Costagliola v English).
How are easments created by long use (prescription)?
Creation by Long Use: Easements can be created by long use (prescription), which occurs when one landowner exercises a right of use over the land of an adjoining landowner for at least 20 years. They can be created by common law or statute.
Common Law
Common Law: Prescription can be acquired under the ‘Common Law Rules’ and ‘Doctrine of Lost Modern Grant’.
(1) Used As Of Right: Under both grounds, the benefitting party or their predecessor-in-title must have exercised the right without force, without secrecy, and without permission (nec vi, nec clam, nec precario).
>This means the burdened landowner ‘acquiesced’ to use - however, if they at any point granted permission or explicitly refused permission, the ground is not met.
(2) Regular Use: The right must have been regularly used over those 20 years.
(3) Diversity of Occupation: The right must have been exercised by landowner to landowner (including leaseholds).
(4) Common Law Rules: Under the Common Law Rules, it is presumed that if the right has been exercised as of right for at least 20 years, then it has existed since 1189 - time immemorial (Darling v Clue).
>This creates a valid easement, unless it can be proved the right was not exercised since 1189, which is simple to do - typically the land was not built upon yet (Mills v Silver).
(5) Lost Modern Grant: Under the Lost Modern Grant, if it can be proved that the right has been used as of right for at least 20 years, then the Court will create a deed of easement by ‘pure fiction’ (Orme v Lyons).
>This creates a valid easement, and cannot be rebutted even if it can be proved the conferring deed never existed - it is sufficient that the deed is pure fiction (Bridle v Ruby).
>Need not be the last 20 years, just a period of 20 continuous years.
Statutory
Statutory: Prescription can be acquired by statute. Unlike common law, a court order must be sought to validate the easement, meaning it must be in use up to the date of action (Prescription Act 1832).
(1) Non-Light: A non-right of light easement will be confirmed by the court if exercised continuously for 20 years as of right (s2).
>If exercised for 40 years, the use need not be as of right, provided there is no evidence of written or oral permission at any point.
(2) Light: A right of light easement will be confirmed by the court if an aperture of the land has had access to light from the adjoining land for 20 years without interruption.
>This is ‘absolute and indefeasible’, meaning the use need not be as of right, unless written permission can be found.
>Aperture means a narrow point, such as a window.
>The court will permit ‘sufficient light according to the notions of mankind for the comfortable use and enjoyment, or beneficial use and occupation, of the building’ (Colls v Home).
(3) Next Before Suit or Action: The use must have been continuous up to the time the order was sought (s4).
>Interruption of the right is permitted for a year preceding an application to court, starting from the date at which the user became aware of the interruption and interrupter (Dance v Triplow).
How are easements enforced?
Enforceability: Easements are enforceable by and upon the original parties to the easement for the period of their occupation. Whether they are enforceable by and upon successors will differ by the means of creation.
Successor to Dominant Land
Successor to Dominant Land: Successors to dominant land automatically benefit from easements attached to the land (s62 LPA).
Successors to Servient Land
Successors to Servient Land: Successors to servient land may be burdened by easements attached to the land. This will differ by type of easement.
(1) Express Legal Easement: Express legal easements may require registration against the property.
Registered Land: Registered as Registrable Disposition by date of transfer (s27 LRA).
Unregistered Land: ‘Bind the whole world’ as a legal interest (Mercer v Liverpool).
(2) Express Equitable Easement: Express equitable easements must be registered against the property.
Registered Land: Registered as IARE by date of transfer (s32 LRA).
Unregistered Land: Registered as D(iii) Land Charge by date of transfer (s2 LCA).
(3) Implied/Prescriptive Easement: These are also a type of legal easement, but require no registration.
Registered Land: Overriding interests provided the purchaser knew of them, or they were reasonably obvious on careful inspection, or were in use in the 12 months preceding sale (Sch 3 LRA).
Unregistered Land: Bind the world.
How are easements removed?
Removing Easements: Easements may be removed in a number of ways.
(1) Express: Dominant landowner can agree to release the easement, usually for payment by deed.
(2) Common Ownership: Easement is extinguished if dominant and servient land come under common ownership.
(3) Abandonment: Dominant landowner may abandon (invalidate) the easement if they take active steps to remove it, such as blocking the window with a right to light, or removing the gate to the right of way (Moore v Rawson).
