Land VII Easement

Question 1

Meaning of a dominant tenement and a servient tenement

Answer 1

A dominant tenement has the benefit of an easement on a parcel of land

A servient tenement has the burden of an easement on a parcel of land

Question 2

Four necessary characteristics for an easement

Answer 2

Is there a dominant tenement and a servient tenement?

Does the easement accommodate (benefit) the dominant tenement?

Are the dominant and servient tenements owned and occupied by different people
- if not, right may be a quasi-easement. But a freeholder can grant an easement to a leaseholder on the same piece of land

Is the right capable of forming the subject matter of a grant?

Question 3

Why must there be a dominant and servient tenement for an easement to be established

Answer 3

There cannot be an easement where an owner of land grants a right to a non-owner of land - instead it is a license. there is no easement in gross (Rangeley v Midland Railway Co)

Question 4

What does accommodate mean? When does it take to amount to accommodate another piece of land?

Answer 4

Accommodate here means to benefit. The claimant must show that right is connected with the normal enjoyment of land (question of fact)

A right over land in Northumberland cannot accommodate land in Kent

Question 5

Definition of an easement

Answer 5

An easement is a right that is attached to one piece of land and imposes a corresponding burden on another piece of land. Easements, like covenants, can be positive or negative

“Easement” is a non-possessory interest in land involving a right to use the land

Question 6

Meaning of right being capable of forming the subject matter of a grant

Answer 6

It simply means the grantor and grantee must have the power to grant the easement/received the easement. A company may have a constitution that restricts the power to grant an easement. A class of people may not be a suitable grantee if the definition is wide or vague.

Question 7

Extra conditions for a right to be capable of forming the subject matter

(3)

Answer 7

Whether the rights are expressed in language which is too wide and vague

Whether such rights would amount to rights of joint occupation, or substantially deprive the park owners of proprietorship or legal possession; and

whether such right would constitute mere rights of recreation, possessing no quality of utility or benefit

Question 8

Rule on easements for guaranteeing the right of recreation

Answer 8

Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018]:

The general rule is that the servient land cannot grant an easement for mere rights of recreation

But the list of easement candidates is not closed

Under the case law, an easement allowing the dominant owner to walk over all parts of the servient tenement purely for pleasure could exist in law.

golf course, swimming pool or tennis court may be an easement

Question 9

Rule on easement amount to legal possession

Answer 9

Copeland v Greenhalf (1952)
servient owner must not be deprived too many of his rights: effective exclusion of his own land

Bachelor v Marlow 2003
This rule mostly concerns the right to park. if the grant of an easement is equivalent to the deprivation of the rights of possession by the servient owner, the easement fails. ‘that a restriction would make the ownership of the land illusory’

Question 10

Challenger to retention of possession by easement

Answer 10

Moncrieff v Jamieson [2007[
an easement that would leave the servient owner with no reasonable use needed some qualification

‘landowner should be able to grant rights of a servitudal character to any extent that he wishes’

Question 11

Rule on right to light (sphere of enforcement)

Answer 11

To one’s windows (Dalton v Angus) but only in relation to the erection of a building in very close proximity

Question 12

Rules on
right to a view
right to TV reception

Answer 12

No. Right to a view impose a burden on a very large and indefinite area. (Dalton v Angus) Right to TV reception similar would impose immense burden on people building for miles around .(Hunter v Canary Wharf Limited)

Question 13

Court’s view on restrictive easement

Answer 13

Very limited and the list may have well been closed.

Right for a wall (restrictive because it forbids an owner from demolishing an adjoining wall) has been excluded (Philipps v Pears)

An example of a negative easement which
the courts have accepted is a right to light. However, such a right must be through a specific aperture, e.g. window, and cannot be a general right to light
(Colls v Home & Colonial Stores Ltd [1904] ).

Question 14

Methods of creation of easement if there has not been a sale of part (now or before)

Answer 14

Express creation (in a separate deed of grant or in writing) of grant or reservation

Acquisition by prescription:
Common law prescription or Doctrine of lost modern grant

Question 15

Review formalities for equitable easement and legal easement

Answer 15

Legal easement: must be amount to years absolute/forever

must be executed by deed - in writing signed witnessed and delivered by deed that says it is a deed.

Equitable easement = estate contract
signed in writing and must contain all agreed terms

Question 16

Meaning of express grant and express reservation

Answer 16

Express grant - servient owner grants right over his own land

Express reservation - in conveying land to another, owner saves or reserves an easement in it (seller/testator)

Question 17

Meaning of use for the purposes of acquisition by prescription

(5) nnn

Answer 17

Because prescription is based on the notion of acquiescence on the part of the land owner, it is essential that the user is:

unchallenged by land owner; nec vi
exercised openly; and nec clam
without permission nec precario

User is a fee simple owner against a fee simple owner

Use must be continuous for requisite period of time

Question 18

What is common law prescription and doctrine of lost modern grant.

Why is common law prescription is weak and often refuted?

Answer 18

Common law prescription: where 20 years’ use, there is a presumption of use since time immemorial (1189). At common law, it was quite easy to defeat a claim to have acquired a right by prescription. All that had to be done was to show that enjoyment must have
begun at some time after 1189.

Doctrine of lost modern grant fills that gap: if there is a 20 years’ use, the court presumes there was a deed but the deed has been lost. Particular useful if the use is established but there has been a break. (Mills and another v Silver and others)

Question 19

Section 2 Prescription Act 1832

Answer 19

Where right claimed in use for 20 years (or 40 to be absolute and indefeasible) - unless enjoyment depends on written consent

Question 20

Section 4 Prescription Act 1832 - the statute that qualifies Section 2

Answer 20

No right to an easement arises until court action brought to claim it

20/40 years’ use must be continuous until date of court action

But interruptions ignored unless person claiming easement allows them to continue for a year after becoming aware of them and of any person responsible for them.

Question 21

Section 3 Prescription Act 1832

Sufficient Ordinary Mankind Enjoyment

Answer 21

Right to light - 20 years’ use uninterrupted, next before action and without written consent, will be absolute and indefeasible.

access and use of light must be shown

Definition of light -
sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment or for the beneficial use and occupation.

Meaning of next before action: the easement established by prescription will not arise unless it is brought into a court action

Question 22

Additional method to create an easement if there has been a sale of part for BOTH sellers and buyers of land

Answer 22

An easement can be implied by

Easements of necessity - arises where, without it, no use can be made of the land (Wong v Beaumont Property Trust ltd) (air duct for a basement kitchen)

Easements implied due to common intention of buyer and seller at time of sale (Wong v Beaumont Property Trust Ltd). Reasonable contemplation of parties at time of contract.

Question 23

Additional method to create an easement if there has been a sale of part for ONLY the buyer

Answer 23

Easements under rule in Wheeldon v Burrows

Easements under s.62 LPA 1925

Question 24

Explain easements under rule in Wheeldon v Burrows

CARD

Answer 24

there will be an easement in favour of the buyer if

• the use has been continuous and apparent: some feature would be apparent on inspection
• necessary for reasonable enjoyment of the land
• being used as a quasi-easement by the seller for the benefit of the part of land being sold (a grantor should not derogate from his grant)

Question 25

Explain easements under s.62 LPA 1925 and the conditions for its creation

Consequences of the creation

Answer 25

(i) conveyance of part (sale of freehold or grant of lease)
(ii) before conveyance of part, there as a license/permission capable of being an easement (Re Ellenborough Park); and

(iii) at time of sale of part there was diversity of occupation

Results:
implies words into conveyance - existing easements automatically transferred to buyer; and

under Wright v Macadam may transform license/permission into legal easement

Question 26

Meaning of diversity of occupation

The implication of Wood v Waddington [2014]

Answer 26

Easements will only operate where land is occupied by different people

Wood v Waddington [2014]
diversity of occupation may not be essential. the right in question should if the right was enjoyed with the land conveyed in such a way the the right was appurtenant to the conveyed if land, as opposed to the whole of the land

Question 27

S 62 of the Law of Property 1925 on enforceability against third parties

Answer 27

where dominant land sold - benefit of easement will pass automatically

Question 28

4 situations for easement rights to be enforced at the sale of servient land

Answer 28

whether the burden of easement passes depends on whether easement is:
legal easement/equitable easement in an unregistered land
legal easement/equitable easement in registered land

Question 29

Review formalities for legal easement

for it to be enforceable in registered and unregistered land

Answer 29

Must be equivalent to a term of years absolute or forever (equivalent to a freehold/leasehold estate)

Must be by deed. the deed must be in writing, signed, witnessed and delivered by a deed that says it is a deed.

if the land is registered, legal easement is registrable disposition:
as a benefit (dominant land) - property register
as a burden (servient land) - charges register

Unreg - legal interest binds the world

Question 30

Review formalities for equitable easement

for it to be enforceable in registered and unregistered land

Answer 30

If an otherwise legal easement fails (s.1(2)(a) LPA 1925)
it must be created by deed in signed written document (s.53(1)(a))

if that also fails, the equitable easement must be an estate contract - in writing signed with all agreed terms (Walsh v Lonsdale)

to bind purchaser:
Reg: IARE - must be protected by an entry (a notice) on the charges register on the servient title of before the registration of the new owner

Unreg: D(iii) charge on the Land Charges Register against name of servient owner by completion

Question 31

Enforeceabilty of implied and prescriptive easements

Answer 31

prescriptive and implied easements are legal easements. Their effects depend on the time of creation:

before 2003 : sch 12 para 9 LRA 2002 automatically OI
betweem 13 Oct 2003 and 13 Oct 2006: OI under sch 3 para 3 LRA 2002 (no conditions attached)

after 2003, OI if only one of the following applies
buyer of servient land knew about it
would have been obvious to buyer of servient land on a reasonably careful inspection of the land; or
person claiming easement can prove has exercised his/her right in the year prior to sale of buyer of servient land

Question 32

When can an easement becomes an overriding interest?

Answer 32

An implied easement can be binding under sch 3 para 3 if

the buyer knew of it or
On a reasonable careful inspection of the land it was obvious to the buyer
The servient tenement enjoyed the benefit for the year prior to sale