Land: Easements and Profits Flashcards
What are the essential characteristics of an easement?
- dominant and servant land
- must benefit dominant land (make it more convenient in some way)
- dominant and servant land must be in different ownership
- right must be of a type recognised as capable of being an easement and must be sufficiently described to identify it
What disqualifying factors may prevent a right from being an easement?
- No Exclusive Possession
- servient tenant must be left with reasonable use of their own land - No Additional Expenditure
- servient tenant must not spend money for easement - No Permission
- After initial grant the dominant owner must exercise benefit as of right
- If they ask for permission each time = not easement
What are the requirements for creating a legal easement of profit a prendre?
- by deed (unless prescription)
- must be forever or fixed term
- (so not for life)
EXCEPTIONS
- easement by prescription
- implied easements for transaction by deed or for legal lease
what is the requirement for making a equitable easement or profit?
- in writing
- signed by both parties
- contains all agreed terms
EXCEPTION
- implied easement into contracts or for equitable leases
If for uncertain duration (ie. for life) will be equitable
What is a grant vs a reservation?
Grant
- if landowner sells dominant land and easement is created over retained (servant) land
Reservation
- if landowner sells servant land and retains easement for benefit of retained (dominant) land
Each can either express or implied
How can easements or profits be acquired?
o Expressly
o Impliedly, or
o By prescription
How is an easement or profit acquired expressly?
Written into transfer document
- if deed then legal
- if contract then equitable
How is an easement or profit acquired impliedly? How does the type of transaction effect this?
Will be implied into sale even if not mentioned in transfer documents
- Necessity (Grant & Reservation)
- Common intention (Grant & Reservation)
- Wheeldon v Burrows (Grant only)
- S. 62 LPA 1925 (Grant only)
- ancillary easement (Grant only)
How can an easement of profit be acquired by s. 62?
GRANT ONLY
Easement or profit passes in conveyance even if not specifically mention in transfer document if it is a grant and:
- right must exist at date of conveyance
- must be evidence of prior use
- must be no contracry intention
- it is possible for parties to exclude expressly in transfer document
How can an easement or profit be acquired by necessity?
Grant or Reservation
If land (dominant land) is landlocked and easement is necessary to enter
Will be necessary
- even if river access but no land access
- even if foot access but not for cars
Not if
- there is 3rd party could grant easement
How can easement be acquired by common intention
Grant or Reservation
- Easement will be implied by common intention where land has been sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the easement
Requirements
- conveyance for specific purpose
- purpose must be known to both parties
- easement must be essential to achieve common purpose
Example of common intention easement
- Plot purchased as building plot for development of houses – evidenced by planning permission for one house (easement for services such as electricity and sewage was implied into it)
When will an easement be acquired by ancillary easement?
Grant only
For example if other right is given which requires the easement
EG
- right to take water from spring implies acilliary easement of right of way to spring
How can an easement be acquired by Wheeldon v Burrow?
Grant only
On sale of land those easements will pass which:
- are continuous and apparent
- are necessary to the reasonably enjoyment of the land acquired; and
- have been and were at the date of conveyance used by the seller for benefit of land being sold
How can an easement be acquired by prescription?
Recognised even tough there is no written evidence if it can be shown that:
- has been carried out unchallenged for over 20 years; and
- used the benefit as a right (so without permission or by paying for it)
What effect does an easement acquired through prescription have?
Legal Easement
How are easements/profit protected for registered land?
Legal Easement
- Expressly Acquired
- must be registered as notice
- on charges of servient land
- on property register if dominant land - Impliedly Acquired
- will be overriding interest if:
- actual knowledge of buyer or obvious on reasonable inspection; and
- has been exercised within year before transfer
Equitable Easement
- always binding on if no consideration
- otherwise must be entered as notice on charges register of servient land
How are easements/profit protected for unregistered land?
Legal
- always binding
Equitable
- always binding if no consideration
- otherwise must be entered as Class D(iii) land charge
