Lecture 14 - easements

Question 1

what is an easement

Answer 1

a right of one landowner to enjoy limited use of anothers neighbouring land

Question 2

what is a profit

Answer 2

a right to remove something from anothers land

Question 3

what is the difference between the dominant and servient tenement

Answer 3

dominant - the land to which the right is attached (land which benefits from easement)
servient - the land over which the right is exercised (the land burdened by the easement)

Question 4

whats the difference between positive and negative easements

Answer 4

a positive easement allows the dominant landowner to use a part of the servient tenement
a negative easement provides the dominant landowner with the right to receive something

Question 5

what is the significance of the re ellenborough park case

Answer 5

sets out a 4 stage test to determine if theres an easement or not
1. is there a dominant and servient tenement
2. is there seperate ownership or occupation of the dominant and servient tenements
3. does the purported easement accomodate the dominant tenement (the right must benefit the land itself not merely personal advantage)
4. is the easement capable of forming the subject matter of a grant

Question 6

what is the significance of harris v flower

Answer 6

highlights that the dominant landowner is not able to exercise the easement for benefit of additional land

Question 7

what are the different ways easements can be created

Answer 7

expressly or impliedly granted
prescription (presumed from user whos had right over land for years)
doctrine of proprietary estoppel
by statute

Question 8

whats the difference between easement by grant and reservation

Answer 8

grant - giving an easement to someone else
reservation - reserving an easement when a new freeholder takes the property

Question 9

when will reservation of easements be implied by courts

Answer 9

for an easement of necessity or an easement of common intention

Question 10

what are the 4 requirements for an easement to be legal

Answer 10

1. can only be legal if its carved out of a larger estate or interest which is itself legal
2. if its granted for a period equivalent to a fee simple absolute in possession or for a term of absolute years
3. if its created according to the principles of creation of easements (grant or reservation etc)
4. is a registrable disposition for the purposes of registered land (transfer of interest which has been registered)

Question 11

when will an easement be equitable

Answer 11

1. where theres a failure to meet any of the 4 four requirements for legal easements
2. where there is a specifically enforceable written contract for the creation of an easement

Question 12

how can easements be terminated

Answer 12

unification of tenements
release or abandonment
obsolescence
estoppel
excessive user