Land VII Easement Flashcards
Meaning of a dominant tenement and a servient tenement
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
Four necessary characteristics for an easement
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?
Why must there be a dominant and servient tenement for an easement to be established
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)
What does accommodate mean? When does it take to amount to accommodate another piece of land?
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
Definition of an easement
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
Meaning of right being capable of forming the subject matter of a grant
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.
Extra conditions for a right to be capable of forming the subject matter
(3)
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
Rule on easements for guaranteeing the right of recreation
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
Rule on easement amount to legal possession
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’
Challenger to retention of possession by easement
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’
Rule on right to light (sphere of enforcement)
To one’s windows (Dalton v Angus) but only in relation to the erection of a building in very close proximity
Rules on
right to a view
right to TV reception
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)
Court’s view on restrictive easement
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] ).
Methods of creation of easement if there has not been a sale of part (now or before)
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
Review formalities for equitable easement and legal easement
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
Meaning of express grant and express reservation
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)
Meaning of use for the purposes of acquisition by prescription
(5) nnn
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
What is common law prescription and doctrine of lost modern grant.
Why is common law prescription is weak and often refuted?
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)
Section 2 Prescription Act 1832
Where right claimed in use for 20 years (or 40 to be absolute and indefeasible) - unless enjoyment depends on written consent
Section 4 Prescription Act 1832 - the statute that qualifies Section 2
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.
Section 3 Prescription Act 1832
Sufficient Ordinary Mankind Enjoyment
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
Additional method to create an easement if there has been a sale of part for BOTH sellers and buyers of land
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.
Additional method to create an easement if there has been a sale of part for ONLY the buyer
Easements under rule in Wheeldon v Burrows
Easements under s.62 LPA 1925
Explain easements under rule in Wheeldon v Burrows
CARD
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)
