Land Law - Easements Flashcards
Explain grant vs reservation.
What is the significance of this distinction?
Grant is giving an easement to someone else, e.g. sale or lease of part of the land, I grant the buyer an easement over my land so they can access the road.
Reservation is keeping an easement for yourself upon sale or lease of part of the land, e.g. so I can traverse the buyer’s land to access the road.
Grant easements can be implied by ALL METHODS.
- s.62 LPA 1925 imply
- Wheeldon v Burrows
- Prescription
- Necessity
- Common Intention intended use
Reservation easement can be implied ONLY BY:
- Prescription
- Necessity
- Common intention intended use
Prescription is one method of impliedly giving an easement.
How is this done? How long does it taken? Name any complications.
20 years of continuous use
Use cannot be interrupted for more than 1 year, else it is NOT “continuous use”.
Cannot be with FORCE, SECRECY or PERMISSION - else, it will not be prescription.
Do easements need to be registered to be legally effective?
Yes, express easements must registered.
A deed is necessary in order to convey a legal freehold or a legal leasehold exceeding three years.
If implied, the easement does not need to be registered in order to be a legal easement (s.27(d) LRA 2002). An easement implied into such a conveyance is therefore taken to have been created by deed.
Equitable easements are only enforceable against the grantor
When you grant an easement, what will make it a legal vs equitable easement?
Legal easements can be granted for a set period (e.g. 5 years) or granted forever.
Equitable easements are granted for uncertain terms, e.g. “You can park here until the road works around the block of flats is fixed”.
Where the sale or lease of land occurs through a land contract (i.e. not a deed), is the easement legal or equitable?
Where the sale or lease of the land is made by enforceable written contract (as in Borman v Griffith [1930]) the easement is equitable only (Law of Property Act, section 52; Parker v Taswell (1858)).
When will an easement be implied by the doctrine in Wheeldon v Burrows?
⇒ Wheeldon v Burrows establishes that when X conveys (i.e. sells or leases) part of their land to Y, an easement benefiting the land transferred to Y and burdening the part retained by X will be implied into the conveyance provided that:
- Before the transfer there was a quasi-easement over the retained part in favour of the transferred part;
- At the time of the transfer, this quasi-easement was ‘continuous and apparent’;
- It is ‘necessary for the reasonable enjoyment’ of the transferred part that Y has an easement in the shape of the earlier quasi-easement.
⇒ An easement will not be implied via the doctrine in Wheeldon v Burrows if, at the time of conveyance, the parties exclude its operation
Can necessity impliedly grant or reserve an easement?
Yes, necessity can grant or reserve an easement but it is narrowly construed: must be TRUE NECESSITY, e.g.: The transferred or retained land is land-locked.
Alternative, there can be COMMON INTENTION NECESSITY. The law will impliedly grant (or reserve) an easement into a conveyance of land where the parties to the conveyance held a common intention that the transferred (or retained) land would be used for a particular purpose, and that purpose is possible only if an easement is granted over the retained (or transferred) land.
“But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner” (Parker J in Pwllbach v Woodman (1915)).
⇒ An easement won’t be implied through true necessity if there is a contrary intention that the parties do no intend there to be access to the land (Nickerson v Barraclough [1981]).
⇒ The easement is not implied if there is a footpath, or even access by water, to the transferred land (MRA Engineering v Trimster (1987); Manjang v Drammeh [1990]).
When will s.62 LPA 1925 imply an easement?
If land is benefitted by an easement, that benefit will travel automatically on a conveyance (sale/lease) of that land.
What are the similarities and differences between s.62 LPA 1925 to imply an easement VS. the doctrine in Wheeldon v Burrows?
SIMILARITIES:
⇒ Both doctrines are implying an easement on the basis that prior to the conveyance an easement shaped practice was occurring on the land for the benefit of the land that has been transferred;
⇒ Both operate to grant NOT reserve;
⇒ And can both be expressly excluded.
DIFFERENCE
For Wheeldon v Burrows it is necessary prove BOTH that the right was ‘continuous and apparent’ and ‘reasonably necessary for the enjoyment of the land’
s.62 implies any easement (and other positive rights) which currently benefits the land into the conveyance upon sale/lease.
s.62 LPA will only imply LEGAL EASEMENTS into DEEDS. The doctrine in Wheeldon v Burrows will imply legal or equitable easements into Deeds or Estate contracts, respectively.
Can you exclude s.62 LPA 1925?
Yes, you can exclude this in the conveyance document, e.g. lease / sale contract or deed.
FACTS: Access to a farm was gained over a track on adjoining land from 1922 by the claimants and their predecessors. The track was used between 1922 and 1981 whenever it was dry enough, with the landowners’ knowledge. No express permission was ever granted. The claimants used the track infrequently between 1981 and 1985. In 1987 they tried to lay stone along the track to make it passable in all weather. The landowners sued for trespass and the claimants claimed an easement by prescription.
Q - IS THERE PRESCRIPTION?
Yes: The court held that the use was enough to form the basis of a claim for an easement by prescription – the right had been used ‘reasonably regularly’ and the track had been used without force, secrecy or permission.
(Mills v Silver, 1991).
FACTS: Customers and delivery drivers to a fish and chip shop used a car park on the adjoining land which belonged to the local Conservative Club. The Conservative Club had erected a sign, and replaced it over time. The sign said that the car park was private and for the use of club patrons only.
No: A claim for a parking easement by prescription was rejected. The use of the car park was not ‘as of right’, it had been used by force.
(Winterburn v Bennett, 2017).
Can you have negative easements?
Very very rarely - they are treated with suspicion by the courts.
Right to light (NOT available as of right; only available through a defined apecture, e.g. window or conservatory)
Right to air
Right to support, e.g. a large beam which supports two sides of a semi-detached house.
When someone uses an easement, what are three factors that will disqualify it (not included in Re Ellenborough Park’s 4-stage test)?
- EXPENDITURE
It is necessary/compulsory for the servient owner to spend money.
EG: Supplying hot water to the dominant owner could NOT be an easement, as it means the servient owner would have to spend money.
EG: Servient owner did have to supply water through pipes under his land to the dominant owner, but the latter would have to pay his share of the bill under a quasi-contract
EG: A servient land owner
is not required to carry out repairs for the operation of the dominant owner’s easement. Instead, they must allow the dominant owner onto their servient land to carry out the repairs himself, as his own expense.
2. EXCLUSIVE POSSESSION
The servient owner’s use amounts to exclusive possession.
“An easement must ‘not amount to rights of occupation or… substantially deprive the owners of proprietorship of legal possession’ of the servient land.’” (Lord Evershed MR, Re Ellenborough Park).
EG: Where the servient land owner cannot use, or has lost “possession and control” of their servient land, it is clear the dominant landowner has “exclusive possession” (Montcrieff v Jamieson). In that case, M parking his car atop a cliff in Scotland left Mr Jamieson with ultimate “possession and control” of the servient land.
EG: Mr Marlow had a right to park 6 cars on commercial land belonging to Mr Batchelor. Mr Batchelor successfully argued that these intermittent periods so curtailed his use of the land such that “he had no reasonable use of the land”, and the restrictions “make his ownership of the land illusory” (Batchelor v Marlow, 2003).
- PERMISSION
The exercise of the right must not depend on permission being given by the servient owner.
EG: C claimed a right to park on D’s land. However, C always moved the van when asked to do so by D. In moving his van upon request, it is clear he was parking on the land by permission; not by way of right (i.e. not a land law issue which goes to the land / proprietary interests).
Giving a one-time/initial permission and then never having to ask again is permissible - this will not prevent an easement.
What are some useful questions to ask when deciding whether a right “accommodates” (benefits) the dominant tenement?
(Re Ellenborough Park):
* There must be a dominant and servient tenement
- The right must accommodate the dominant tenement
- There must be diversity of ownership
- The right must be capable of grant
The right only benefits dominant owner whilst they own dominant land. The right should affects nature, quality, use or value of dominant land and not be expressly personal. Problems arise when the right appears to benefit a business as well as the land.
Useful questions to ask are:
- Does the right benefit any owner of the land?
- Does it cease to be of use once the dominant owner has parted with the land?
- Does the right make the dominant land a better or more convenient property?
- Does the right add value or amenity to the dominant land?
