Land - Easements Flashcards
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Rangeley
Absence of DT and ST merely creates a licence
Re Ellenborough Park
Four requirements for an easement:
- Must have DT and ST
- Easement must benefit DT
- DT must be owned/occupied by different people unless it is a lease
- Easement must be capable of forming subject matter of grant
Harris v Fowler
Easement may not be extended once granted to encompass larger area
Hill v Tupper
Easement must benefit DT otherwise it is merely a licence
Bailey v Stephens
There must be a personal nexus between benefit of the right and use of the land
Copeland v Greenhalf
Easement must not amount to exclusive possession
Batchelor v Marlow
Owner of ST must be left with reasonable use (car parking)
Moncrieff v Jameson
Right to park may be construed as a necessity of vehicular access
Phipps v Pears
Negative easements restricting use of the ST are frowned upon
Dalton v Agnus
Right to light only exists if it is in relation to specific windows
City of London Brewery Co
Right to light only extends to the point required for ‘comfortable use of the premises’
Aldred’s Case
There is no right to a view
Hunter v Canary Wharf
There is no right to TV reception
Regis Property v Redman
Easement must not impose a duty on ST to act positively/spend money
Crow v Wood
An easement to maintain fencing is a valid positive easement
s1(1) LPA 1925
Easement will only be legal if held as a fee simple or a term of years absolute
s52(1) LPA 1925
Easement must be granted by deed
ss1(2) and (3) LP(MP)A 1989
A deed will only be valid if:
- identified as such
- signed and witnessed
- delivered
- sealed (if executed before 31/07/1990)
s62 LPA 1925
- Benefits of easement will pass automatically when DT is sold
- An easement may be created by implication into the conveyance
Wright v MacAdam
For an easement to be implied into the conveyance, there must be:
- a conveyance/grant of a lease
- the right must be capable of being an easement and in existence prior to conveyance
- there must be diversity of ownership/occupation
s205 LPA 1925
A conveyance includes the transfer of a freehold estate or assignment/grant of a lease
Sovmots Investments v SoS for the Environment
There must be diversity of ownership/occupation for an easement to be implied into the conveyance
P&S Platt v Crouch
The rule in Sovmots does not necessarily apply
London Corp v Briggs
An easement may be impliedly reserved for the seller where there is a necessity to retain it otherwise the DT would be unusable
Wong v Beaumont Property
- An easement may be impliedly reserved for the seller if it would be reasonable to assume it was within the common intention of the parties at the time
- An easement may be impliedly granted to the buyer if there is a necessity of access
Millman v Ellis
An easement may be impliedly granted to the buyer if there was mutual intent during the transaction (officious bystander test)
Wheeldon v Burrows
Where there is a sale of part, an easement will be impliedly granted to the buyer if there was a quasi-easement previously in existence:
- Use of the easement was continuous/apparent
- The easement would be necessary for reasonable enjoyment of the land
- it was exercised by the owner of the whole land at the time of the sale of part
Common law test for prescription
- use has been continuous since 1189
- use is without permission and unchallenged
- use is open
s2 PA 1832
An easement will be granted by prescription if there has been 20 years’ continuous use
- UNLESS the right has been exercised with the owner’s consent, in which case the period of qualification is 40 years
s3 PA 1832
An easement to light will be granted by prescription if there is 20 years’ continuous use, even with the owner’s permission
s4 PA 1832
Use of the easement must continue until the court action
Simmons v Dobson
An easement may be granted by prescription in accordance with e doctrine of lost modern grant if:
- there has been 20 year’s continuous use, but not since 1189
- the use is unchallenged, open and without permission
- the grantor would have been capable of granting the easement
Bakewell Management v Brandwood
The grantor must be capable of granting the easement
s27 LRA 2002
Legal easements created by express grant/reservation are registrable dispositions
Sch. 3 para. 3 LRA 2002
Legal and equitable easements created by prescription or implication are overriding interests, PROVIDED
- buyer of ST had knowledge of them
- they would have been obvious upon reasonable inspection
- the person claiming the right has exercised it 1 year prior to sale/registration
OTHERWISE they are minor interests and must be protected by notice (s32 LRA 2002)
Class D(iii)
Equitable easement
s2 LCA 1972
An equitable easement must be registered as a Class D(iii) land charge in UL to bind a third party
s29 LRA 2002
A legal easement will only be binding if it has been registered by the date of registration of the sale
Sch. 12 para. 9 LRA 2002
Equitable easements created before 13/10/03 will continue to be overriding interests
Benn v Hardinge
An easement may be extinguished by abandonment provided there is intention to abandon
Regan v Paul Properties
Injunction to permit use of easement is the most likely remedy
Abatement
Owner of DT may abate any obstruction, PROVIDED
- no innocent party would suffer loss as a result
- only reasonable force is used in the process
