Lesson 3 Flashcards
What is an easement?
An easement is an interest in land where one party has a right over land owned by another, such as a right of way or the right to block a neighbour’s light.
When can an easement be considered a legal interest?
An easement is only a legal interest if it is granted for either a freehold (forever) or leasehold (fixed or ascertainable duration) estate. If granted for an uncertain duration, it can only be an equitable easement.
What are the four essential characteristics of an easement?
- There must be a dominant and servient tenement.
- The right must accommodate the dominant tenement.
- The dominant and servient owners must be different.
- The right must be capable of forming the subject matter of an easement.
How can an easement be created?
An easement can be created by one of three methods:
1. Express easement (agreed between parties and formalised via a deed).
2. Implied easement (from the sale of part of a larger land parcel).
3. Prescription (long-term use of the land).
What is an express easement?
An express easement is an easement created through an agreement between parties, typically formalised by a deed. If not formalised correctly, it may be recognised as an equitable easement.
What is an implied easement?
An implied easement arises when part of a larger parcel of land is sold. It can be implied for the benefit of the buyer or retained for the seller’s benefit.
What is an easement of necessity?
An easement of necessity arises in extreme cases where a right is needed to use the land, such as a right of way that prevents the land from being landlocked.
What is an easement of common intention?
An easement of common intention is based on evidence that both parties had a shared purpose when the land was sold, and the right claimed is necessary to fulfil that purpose.
What is the Wheeldon v Burrows rule?
The Wheeldon v Burrows rule allows for certain rights to pass to a buyer during the sale of land if they are continuous, apparent, and necessary for the reasonable enjoyment of the land sold.
What is Section 62 of the Law of Property Act 1925?
Section 62 allows for rights and easements to automatically pass with the conveyance of land, including rights that were only licences before the conveyance, without needing to be expressly stated.
What is a quasi-easement?
A quasi-easement exists when the owner of two parcels of land uses one parcel for the benefit of the other, but both parcels are owned by the same person. The right can become an easement when the land is sold.
How can an easement be created through prescription?
An easement can be created through prescription by continuous use of the right for 20 years or more, without force, secrecy, or permission. The right is presumed to have a lawful origin.
What is prescription at common law?
Prescription at common law presumes that a right exercised for 20 years or more continuously and as of right existed since 1189. However, this presumption can be rebutted if the right was not used during that period.
What is the doctrine of lost modern grant?
The doctrine of lost modern grant allows an easement to be presumed if it has been used continuously and as of right for 20 years, based on the assumption that a grant was made but the deed is lost.
What is the Prescription Act 1832?
The Prescription Act allows a dominant owner to acquire an easement if they have enjoyed the right continuously as of right for 20 years, even if the use started after 1189. Interruption of use for more than a year stops the 20-year period from running.
What is the requirement for starting a court action under the Prescription Act 1832?
For an easement to be granted under the Prescription Act 1832, the claimant must initiate a court action. Interruptions lasting more than a year in the 20-year period before the action requires a new period to be established.
What are the key methods of creating an easement?
The key methods are:
1. Express easement.
2. Implied easement (through sale of part).
3. Prescription (through continuous use over time).
What are the formalities for creating an express easement?
An express easement requires a deed to be legally valid. If no deed is used, it may be recognised as an equitable easement if certain contract formalities are followed.
What happens if an easement is not expressly stated during a conveyance under Section 62?
If an easement is not expressly stated in the conveyance, Section 62 of the Law of Property Act 1925 ensures that all rights and advantages enjoyed by the land automatically pass with the conveyance.
