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Law First Year > Property Law Second Term - EASEMENTS > Flashcards

Property Law Second Term - EASEMENTS Flashcards

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1
Q

What did Luther argue about the ouster principle?

A

What matter is ‘what the claimant could do by virtue of his E not what the owner could not do’

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2
Q

Cannot use E to benefit land other than DT

A

Harris v Flower

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3
Q

Re Aldred

A

‘Good view’

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3
Q

Formalities for an equitabl easement?

A

S.2(1) LP(MP)A

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3
Q

What are the requirements for implying easements under Wheeldon v Burrows?

A

Needs to be ‘continuous and apparent’ and/or ‘reasonably necessary’ for enjoyment

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4
Q

what is the primary undisputed difference between Wheeldon and s.62?

A

Necessary for reasonable enjoyment is only required for Wheeldon

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4
Q

What did the Law Com suggest about the ouster principle in Report No.327?

A

Allow a right to prevent STO from making reasonable use of the land if that is what he wishs to do

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5
Q

Which case considered both questions given for the ouster principle?

A

Moncrieff v Jamieson

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6
Q

Wall v Collins

A

E is at least as long as the original lease if A obtains fee simple from leasehold

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6
Q

What case outlines the implication of easements through common intention?

A

Davis v Bramwell

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6
Q

Why should Wood v Waddington be considered cautiously?

A

First instance decision that shouldn’t be taken to have destroyed Wheeldon

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6
Q

E is at least as long as the original lease if A obtains fee simple from leasehold

A

Wall v Collins

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6
Q

Right to use flat roof equivalent to ownership

A

Hanina v Mrland

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7
Q

Common intention for land to be used in a particular way, and grant necessary to give effect

A

Davis v Bramwell

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8
Q

Hanina v Mrland

A

Right to use flat roof equivalent to ownership

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8
Q

Davis v Bramwell

A

Common intention for land to be used in a particular way, and grant necessary to give effect

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9
Q

How are implied easements protected?

A

Schedule 3 paragraph 3

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10
Q

Bakery to homes

A

Macadams Homes v Robins

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10
Q

Just needs to be reasonably necessary for wheeldon v burrows , but not equated with necessity

A

Hillman v Rogers

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11
Q

Who suggested we look at the ouster principle from the wrong way and should consider what the claimant could do, not what the owner cannot?

A

Luther

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11
Q

Provide electricity (positive burden ST E) or DT would be unusable

A

cardwell v Walker

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12
Q

What is the ‘ouster principle’?

A

Not allowing right to be capable of forming subject matter of E if equivalent to possession

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13
Q

Harris v Flower

A

Cannot use E to benefit land other than DT

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13
Q

E necessary for DTO to use land for conveyed purpose - ventilation

A

Wong v Beaumont

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14
Q

What did Law Com No.327 suggest about housing estates?

A

For registered titled it should be possible for DT and ST to exist if owned by same person under different titles

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15
Q

What are the limitations of s.62 LPA?

A

Applies only to conveyance of sale/lease, can be excluded expressly/by circumstance, use must have been before conveyance and subject needs to be capable of meeting criteria for E

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16
Q

Moncrieff v Jamieson

A

Bottom of cliff

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17
Q

Wheeldon v Burrows

A

Implied grant of all rights in the nature of E (quasi-easemnts) that the seller enjoyed AND USED prior to transfer

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19
Q

Batchelor v Marlow

A

STO have any ‘reasonable use’ of the land left for ‘ouster principle’?

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19
Q

What is the disputed difference between Wheeldon and s.62 LPA?

A

Diversity of occupation - not needed for Wheeldon, assumd required for s.62 but Wood v Waddington

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21
Q

What does Sturley argue in response to the removal of a DT means there is no limit on the needs of the DT for an E so may overburden ST?

A

Still limited by the terms of the grant

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22
Q

If lease ends by surrender to owner of fee simple, easement survives

A

Barrett v Morgan

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23
Q

Storage in cellar too much for E

A

Grigsby v Melville

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25
Q

Alford v Hannaford

A

Could not prove use of a track prior to transfer so failed under Wheeldon v Burrows

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25
Q

Implied grant of all rights in the nature of E (quasi-easemnts) that the seller enjoyed AND USED prior to transfer

A

Wheeldon v Burrows

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26
Q

Boundary fences positive burden - unlikely now

A

Jones v Price

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27
Q

What are the requirements for an easement?

A

DT and ST both identifiable, which differ in ownership and occupation. The E must ‘accommodate’ the DT and right must be capable of forming the subject matter of a grant

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27
Q

Who showed there is a reluctance to develop new easements?

A

Phipps v Pears

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28
Q

Hillman v Rogers

A

Just needs to be reasonably necessary for wheeldon v burrows , but not equated with necessity

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29
Q

Which question was Neuberger unconvinced on in Moncrieff v Jamieson?

A

if there was ‘reasonable use’ left

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30
Q

Underground sewer repairs - DTO right to come onto ST to do what is ‘reasonably necessary’

A

Duke of Westminster v Guild

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32
Q

Bound to follow Batchelor v Marlow as not overruled

A

Virdi v Chana

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33
Q

Re Ellenborough Park on ‘accomodate’

A

Geographical part to test, and recreation productive and beneficial

33
Q

What are the formalities for a legal easement?

A

S.53(1)(a) LPA and LRA s.27

34
Q

What are presumed grants of an E?

A

By prescription (long use)

36
Q

For implied easements, how do you work out if they are equitable or legal?

A

Look at the formalities made for the estate in question - if implied into s.53(1)(a)/registered disposition then legal , but if s.2(1) LP(MP)A then equitable

36
Q

Thinks both reasonably necessary AND continuous and apparent needed for Wheeldon v Burrows

A

Millman v Ellis

37
Q

Yeung v Potel

A

Heavy burden of proof for easements by reservation

38
Q

Why are there registration issues if DT is dominant land?

A

requires manually moving E on leasehold to freehold with a time limit

40
Q

What are the limitations on implied easements for necessity?

A

Only for rights of way, if there is no other access and only for access to a public highway

41
Q

Millman v Ellis

A

Thinks both reasonably necessary AND continuous and apparent needed for Wheeldon v Burrows

43
Q

STO have any ‘reasonable use’ of the land left for ‘ouster principle’?

A

Batchelor v Marlow

44
Q

Who argued we should balanc the benefit of exploiting the DT against the burden on the ST - restricted to situations where sealed packets of land do more good than harm?

A

Gardner

45
Q

‘Good view’

A

Re Aldred

47
Q

What was said in Macadams Homes v Robins to work out if use of an easement is excessive?

A

‘Radical change’ of ‘identity’ of the land and a ‘substantial increase or alteration in the burden on ST’

48
Q

Where do the requirements for an easement come from?

A

Lord Evershed MR in Re Ellenborough Park

49
Q

Polo Woods v Shalton-Agar

A

Easement, to ‘accomodate’, does not have to be needed, just connected and with utility

50
Q

What is the effect of s.62 LPA?

A

If B is in prior occupation with a licence to the road, and A sells that part of his land to B, B acquires an automatic easements over A’s land to the road

52
Q

Barrett v Morgan

A

If lease ends by surrender to owner of fee simple, easement survives

53
Q

What case shows there is a heavy burden of proof for easements by reservation?

A

Yeung v Potel

53
Q

What three subcategories are found under (4) must be capable of forming the subject matter of the grant?

A

Must b sufficiently certain, no positive burden and ‘ouster’ principle

54
Q

Re Ellenborough on certain

A

‘jus spatiendi’

55
Q

Which case shows the difference between implication by necessity and wheeldon v burrows?

A

Borman v Griffith

56
Q

What Law Commission Report considered Sturley’s arguments but said requirements for E should not be relaxed?

A

No.186 (2008)

58
Q

Duke of Westminster v Guild

A

Underground sewer repairs - DTO right to come onto ST to do what is ‘reasonably necessary’

59
Q

Jones v Price

A

Boundary fences positive burden - unlikely now

60
Q

Wong v Beaumont

A

E necessary for DTO to use land for conveyed purpose - ventilation

62
Q

Moncrieff v Jamieson on exercising right reasonable in regard to use of DT

A

Land was farm land, so needs to be taken into account for ‘ouster principle’ and capable of forming the subject of E

63
Q

No positive burden on ST owner (easements)

A

William Old International v Arya

65
Q

Why would Wood v Waddington be preferable if correct on s.62?

A

Fewer precursors - don’t need reasonable enjoyment (Borman v Griffith; Hillman v Rogers)

67
Q

Bottom of cliff

A

Moncrieff v Jamieson

68
Q

Easement through proprietary estoppel

A

Eves v High

70
Q

Canal; E must benefit DT

A

Hill v Tupper

71
Q

Macadams Homes v Robins

A

Bakery to homes

72
Q

What are the four ways an easement can be implied?

A

Necessity, common intention, Wheeldon v Burrows and s.62 LPA

73
Q

Virdi v Chana

A

Bound to follow Batchelor v Marlow as not overruled

74
Q

Grigsby v Melville

A

Storage in cellar too much for E

76
Q

Claimed E to acquired land, but not landlocked - right of way was necessary for reasonable enjoyment because more suitable

A

Borman v Griffith

77
Q

Could not prove use of a track prior to transfer so failed under Wheeldon v Burrows

A

Alford v Hannaford

78
Q

What are the two possible questions for the ‘ouster principle’?

A

Does STO retain exclusive possession? (Law Com) Does STO have ‘reasonable use’ left? (Batchelor v Marlow)

79
Q

what case shows that an E cannot be use to benefit land other than the DT?

A

Harris v Flower

80
Q

Sturley on requirements for E

A

Requirement of DT is ‘without authority or justification’

81
Q

What two things are needed for an equitable easeement NOT through PE?

A

S.2 LP(MP)A specifically enforceable through Walsh v Lonsdale

82
Q

Heavy burden of proof for easements by reservation

A

Yeung v Potel

83
Q

cardwell v Walker

A

Provide electricity (positive burden ST E) or DT would be unusable

84
Q

What was it suggested is not sufficiently certain to form the subject matter of a grant of E?

A

Re Ellenborough - no ‘jus spatiendi’; Re Aldred - ‘good view’

85
Q

Borman v Griffith

A

Claimed E to acquired land, but not landlocked - right of way was necessary for reasonable enjoyment because more suitable

86
Q

Easement, to ‘accomodate’, does not have to be needed, just connected and with utility

A

Polo Woods v Shalton-Agar

87
Q

Eves v High

A

Easement through proprietary estoppel

89
Q

Hill v Tupper

A

Canal; E must benefit DT

90
Q

Who is an example of someone who thought recreation could not ‘accommodate’ the DT?

A

Theobald “The Law of Land”

91
Q

Wood v Waddington

A

Diversity of occupation not needed for s.62

92
Q

What Law Com report found the ouster principle unhelpful?

A

Law Com No.327

94
Q

William Old International v Arya

A

No positive burden on ST owner (easements)

95
Q

Do you need to register or have formalities for implied easements?

A

No - automatically operate at law

96
Q

What happens if the lease of the ST ends by lapse of time?

A

E ends

97
Q

What happens if the ST lease ends by forfeiture?

A

Easement ends

98
Q

What happens if the lease of the ST ends by surrender to owner of fee simple?

A

E survives (Barrett v Morgan)

99
Q

What happens if the lease of the ST ends by merger, but merger is denied?

A

Lease and E continue

100
Q

What happens if A buys a DT and ST, with a lease on the DT?

A

Easement is not destroyed

101
Q

What happens if A buys DT and ST/owns DT and leases ST

A

Easement is suspended

102
Q

What is the housing development issue under easements with ST and DT needing to be in different ownership and occupation?

A

Cannot create E before sale

103
Q

How could the housing development issue be solved for easements?

A

Grant a 2000 year lease under s.145 LPA instead

104
Q

What type of reasoning was employed in Wall v Collins?

A

Policy-based reasoning

105
Q

Why was the decision in Wall v Collins what it was?

A

Without it, land would have been landlocked

106
Q

What is the ‘posh’ name for easements?

A

Incorporeal hereditaments

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