Land - Easements

Question 1

What are the 4 factors in Re Ellenborough Park?

Answer 1

1- Dominant and Servient tenements
2- Dominant benefited, servient burdened
3- Owned and occupied by different
4- Capable of forming the subject matter of a grant

Question 2

a right of way over land in northumberland cannot benefit land in Kent (right must be connected to normal enjoyment of land)

Answer 2

Bailey v Stephans

Question 3

What two things must be considered when looking at whether the right could form the subject matter of a grant?

Answer 3

1- Grantor and grantee?
2- Nature of right not too wide/ vague
3- Not a claim for possession
4- Not a mere right of recreation

Question 4

Right to park capable of forming subject matter of a grant

Answer 4

London and Blenheim

Question 5

Right to light capable of forming subject matter of a grant but only in relation to the erection of a building in close proximity

Answer 5

Dalton v Angus

Question 6

If there has not been a sale of part, what are the ways in which an easement can be validly created?

Answer 6

1- Express creation

2- Common Law Prescription

Question 7

If created expressly, what formalities must be satisfied to be legal?

Answer 7

1- s.1(2)(a) LPA - Must be equivalent to forever or a term of years absolute
2- s.52 LPA - Must be by deed
3- s1 LP(MP)A
4- s.27 LRA - Must be registered

Question 8

What requirements must be met for an easement to be validly created by prescription?

Answer 8

1- User as of right
2- fee simple owner against fee simple owner
3- Use is continuous for requisite period of time

Question 9

What are the 3 ways an easement can be created by prescription under common law?

Answer 9

1- Common law prescription (1189)
2- Doctrine of lost modern grant
3 - Prescription Act

Question 10

When will it not be possible to claim an easement by prescription under the Prescription Act

Answer 10

s.4: if the person claiming the easement allowed an interruption to it to continue for over a year after becoming aware of them

Question 11

What type of interest is an easement created by prescription?

Answer 11

Overriding interest under sch 3 para 3

Question 12

If there has been an interruption to use, will an easement created under the doctrine of lost modern grant fail?

Answer 12

No- created by deed

Question 13

What type of interest is a prescriptive easement?

Answer 13

Legal easement, classed as an overriding interest under sch 3 para 3