Land Law Summary SQE 2 Flashcards
What is an easement?
A right benefiting a dominant tenement (land) that is enjoyed over another’s (servient) land.
Examples: Right of way, Right to use drains or pipes, Right to light, Right to nail trees to neighbour’s wall.
Who are the parties involved in an easement?
Dominant land: The land that benefits
Servient land: The land that bears the burden.
What are the 5 requirements for a valid easement (Re Ellenborough Park)?
There must be dominant and servient land
Different owners for each land
Must accommodate the dominant land
Must be capable of forming the subject matter of a grant
Must not confer exclusive possession.
What does ‘accommodate the dominant land’ mean?
The right must benefit the land itself, not just the personal enjoyment of the landowner.
Example (NOT an easement): Free tickets to events due to inconvenience; Example (Valid): Use of golf course, pool, or tennis court.
What makes a right incapable of being an easement?
Too vague (e.g., “right to wander at will”)
Enjoyment of a view or air flow (unless through a defined channel)
Grants exclusive use of servient land (leaves no reasonable use to servient owner).
Can car parking be an easement?
Only if it does not amount to exclusive possession. If it precludes ordinary use by servient owner = NOT valid.
What are the 3 types of legal easements?
Express easement (by deed + registered)
Implied easement
Presumed easement (by prescription).
What is required for an express legal easement?
Created by deed
Must be registered on the title if over registered land
If not registered = equitable only.
What are the 3 main methods for implied easements?
Wheeldon v Burrows
s.62 Law of Property Act 1925
True necessity.
What are the conditions under Wheeldon v Burrows?
Right must be continuous and apparent
Reasonably necessary for enjoyment of land
Right must have been used at the time of the transfer
Requires unity of ownership and occupation.
What does s.62 LPA 1925 do?
Converts existing privileges or licences into legal easements on sale of part.
Requirements: Must be a conveyance; Requires diversity of occupation (not unity); Does NOT need to be continuous/apparent/necessary.
How do Wheeldon and s.62 differ?
Wheeldon = Unity of occupation, needs apparent + necessary
s.62 = Diversity of occupation, no need for necessity or continuity.
When is an easement implied by necessity?
When land is landlocked – e.g., no access without a right of way.
What is a legal easement by prescription?
A right acquired by 20+ years of continuous use, without:
Force, Secrecy, Permission.
When does an easement take effect as equitable?
If not created by deed
Or not registered where required.
How are equitable easements protected?
Registered land: By notice on the register
Unregistered land: By Class D(iii) land charge.
What happens if you don’t protect an equitable easement?
A buyer of the servient land may take free of it.
Which easements are overriding interests?
Implied/presumed easements (under LRA 2002)
Express legal easements over unregistered land.
What are the conditions for an overriding easement?
Must meet one of the following:
Known to the buyer, Obvious on a reasonably careful inspection, Actively used within the last year.
Do equitable easements override first registration of unregistered land?
No – they must be protected via a Class D(iii) land charge.
What are the risks to a buyer of the servient land?
May be bound by easement
May restrict use of land
May incur maintenance or costs.
What are the risk mitigation options for servient land buyers?
Express release or variation by deed
Indemnity insurance
Implied release through abandonment (requires non-use + intention).
What are the risks to the buyer of dominant land?
Easement might be unenforceable if not registered.
How can dominant land buyers mitigate these risks?
Check enforceability
Add contractual condition for registration before completion
Seek injunction if rights are blocked.
