Land Law Flashcards
What is an easement? What is the difference with a profit?
A right for one landowner to make use of another parcel of land for the benefit of their own land.
On the other hand, a profit is a right to go on somebody else’s land and remove from the land something which exists naturally, e.g. a right to catch fish.
Can a easement be legal? And how?
Easements are capable of being legal if they meet the requirements of s1(2)(a) LPA.
In order to be capable of being legal, the right must be granted for the equivalent of either:
- an estate in fee simple absolute in possession (freehold), ie. forever; or
- a term of years absolute (leasehold).
An easement for uncertain duration cannot be legal.
A deed is required to create a legal easement. However, legal easements can be created without the formality of a deed.
What does an easement need to exist?
An identifiable dominant and servient tenement.
An easement cannot exist in gross. This is because one it is created it is included in the definition of the land.
The right must be connected with the normal enjoyment of the dominant tenement. This is a question of fact.
The two tenements do not need to adjoin but they should be close enough to establish a connection between the two.
The dominant and servient tenements must not be both owned and occupied by the same person.
The easement must be capable of forming the subject matter of a grant:
- capable of reasonably exact definition;
- not involve any expenditure by the servient owner;
- not be so extensive as to amount to a claim to joint possession of the servient tenement; and
- the law is very cautious when it comes to a claim for a new type of negative easement.
When can an easement of light exist?
Only where it is sufficiently definite and the light is enjoyed via a defined aperture, e.g. a window. The person claiming the right to light must demonstrate an infringement as follows:
The light reaching the windows [of the dominant building] must be sufficient according to the usual notions of mankind for the comfortable enjoyment of the building, bearing in mind the type of building and its locality.
Can a right to a view be an easement?
No - the law does not give an action for such things of delight.
Communal garden was accepted as easement - right to use land for recreational purposes. Supreme Court held easements could exist in relation to a golf course, swimming pool or tennis court.
What is the difference between a negative or positive easement?
A positive easement is one where the benefit of the easement is enjoyed by occupants of the dominant land performing some activity, e.g. a right of way, a right of drainage.
A negative easement is where the right exercised by the dominant owner prevents the servient owner from doing something on their land. The only negative easements recognised at law are those of light, air and support.
What are the 6 ways by which an easement can be created?
- Express grant/reservation
- Implied by necessity
- Implied by common intention
- The rule in Wheeldon v Burrows
- Section 62 LPA 1925
- Prescription
What is an express grant/reservation?
Express grant is where the servient owner executes a deed granting the dominant owner an easement over the land owned by the servient owner.
An express reservation is where the seller reserves/retains rights over the land they are selling.
How is an easement implied by necessity?
Applies to grants and reservations.
Circumstances are extremely limited. An easement of necessity would arise on the sale of a land-locked parcel of land.
How is an easement implied by common intention?
Applies to grants and reservations.
Where land is conveyed for a purpose known to the grantor, any easement over land retained by the grantor which is essential in order for that purpose to be carried out is implied into the grant in favour of the grantee.
Look for a common purpose known to the parties - the right claimed is needed in order for the common purpose to be fulfilled.
What was the rule from Wheeldon v Burrows?
Only applies to grant of an easement, not a reservation. No application to profits.
The effect of the rule is to convert ‘quasi-easements’ into easements. The occurs when a land owner sells part of their land. Any quasi-easements exercised by the landowner will pass to the buyer subject to certain conditions being satisfied:
- the existence of a quasi-easement prior to the sale;
- the right must be continuous and apparent;
- the right must be necessary to the reasonable enjoyment of the land sold; and
- the right must be in use at the time of the sale.
What’s a quasi-easement? Rights exercised by a land owner over their own land. Has the characteristics of an easement but no diversity of ownership.
What does s62 LPA say regarding creation of easements?
It has the effect that on a conveyance of land, if nothing to the contrary is stated in the deed, the conveyance is deemed to pass to the buyer not just the buildings and fixtures but all liberties, privileges, easements, rights and advantages whatsoever appertaining or reputed to appertain to the land or any part thereof or at the time of the conveyance enjoyed with the land.
All existing rights pass automatically to the buyer, without the necessity of formal words in the conveyance.
What are the conditions for the operation of s62 LPA?
- There must be a conveyance which requires an instrument.
- There must be some diversity of occupation of the two parts of the land at the time of the grant. This does not apply to easements of light or where the rights were continuous and apparent. Thus, where there is diversity of occupation, no requirements for the rights to be continuous and apparent.
- There must be an existing privilege at the date of the conveyance. Section 62 is not concerned with future rights.
- The right must be capable of being an easement or profit.
Look for an existing licence/permission and a subsequent conveyance. There must be diversity of occupation - if not, continuous and apparent right.
How is an easement created by prescription?
Where the dominant owner can show use of the right for 20 years, the court will uphold the legal right by presuming that it had a lawful origin.
There are three types of prescription:
a) at common law
b) the doctrine of lost modern grant
c) the Prescription Act 1832.
Whichever method used, the right must have been exercised continuously and as a right (ie. without force, secrecy or permission).
How do you rebut the presumption of creation of an easement by prescription at common law?
If you can show that at some time since 1189:
- the right was not exercised
- the right could not have been exercised
- the dominant and servient tenement were vested in the same owner (unity of seisin).
How does the Prescription Act create an easement?
If the dominant owner can show user as of right for 20 years then they will obtain a prescriptive easement even though the user clearly commenced sometime after 1189.
Look for a right that has been exercised for 20 years (30 years for profits) or more as between two distinct parcels of freehold land.
Can a covenant be legal?
No - they are equitable in nature.
Therefore, the relevant formality is in writing and signed. Can be either by contract or deed (more common).
What determines whether a covenant is positive or negative?
The substance - not the wording.
How can it be implied into a covenant that the covenantor has covenanted on behalf of themselves and their successors in title?
By s79 LPA 1925.
Can the burden of a covenant pass at common law?
No. It is based in contract law - only the benefit can be assigned, never the burden.
Can the burden of a covenant pass in equity?
Yes - the burden of a restrictive covenant may pass in equity.
What are ways of enforcing a positive covenant?
- Create a lease
(both restrictive and positive covenants are binding on a successor in title to a tenant) - Indemnity covenant
- The doctrine of mutual benefit and burden
(A person who wishes to take advantage of a service/facility which benefits their land must also comply with any corresponding obligation).
What are the pre-conditions to the doctrine of mutual benefit and burden regarding the enforcement of positive covenants?
i) the burden must be ‘relevant to the exercise of rights which enable the benefit to be obtained’
ii) the covenantor’s successors in title must have the opportunity whether to take the benefit or renounce it
What are the rules regarding annexation re the benefit running of a covenant at common law?
This is regarding enforcing a covenant in contract.
a) the covenant must touch and concern the land
b) there must have been an intention that the benefit should run with the estate owned by the covenantee
c) the covenantee must have a legal estate in the benefitted land
d) the buyer of the benefitted land must also take a legal title in the benefitted land
Can the benefit of a covenant be passed to a successor under common law? How?
Yes - by express assignment. It must be in writing and signed by the assignor and the written notice of the assignment must be given to the person with the burden.
What does annexation mean in the context of covenants?
The permanent attachment of the covenant to the dominant land.
How can the benefit of a covenant run in equity through annexation?
- Express annexation (covenant must express an intention to benefit a defined piece of land)
- Implied annexation (where annexation was obviously intended and would be unjust to ignore the intention)
- Statutory annexation (s78 LPA 1925)
- covenant must have been created post-LPA
- covenant must touch and concern the land (identifiable land)
How can the benefit of a covenant run in equity through assignment?
Express assignment (same conditions as running in common law).
If positive covenants cannot pass in equity or at common law, how does the original covenantor remain bound?
By privity of contract.
What are the remedies available for breach of positive covenant?
- Damages are most common (monetary solution and may include a sum for future loss).
- Specific performance available against original covenantor (but not successors) but chances are they do not have control over the land.
