SBAQ - EASEMENT Flashcards
- Which one or more of the following must be satisfied for there to be a valid legal express easement over registered land?
- Must be created by deed under s52 LPA 1925
- Must be created by signed writing under s53(1)(a) LPA 1925
- Must satisfy s1(2) LPA 1925 ie be for a period equivalent to a freehold or a leasehold estate
- Must fall within one of the conditions in Sch 3 para 3 LRA 2002
- Must be registered under s27 LRA 2002, as it is a registrable disposition
- Must be created by deed under s52 LPA 1925
Must satisfy s1(2) LPA 1925 ie be for a period equivalent to a freehold or a leasehold estate
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Correct. To be legal, an expressly created easement must satisfy s1(2) LPA 1925 as to duration, be created by deed (s52 LPA 1925) and be completed by registration (s27 LRA 2002). Registration also makes the easement enforceable against a buyer of the land. Sch 3 para 3 LRA 2002 only applies to easements created impliedly on a sale of part or by prescription and deals with enforceability against a buyer, not whether the easement is legal in the first place.
Express legal easements can be acquired in several ways.
Which one of the following statements is Wrong?
1. A legal easement can be acquired by statute.
2. A legal easement can be acquired by express or implied grant.
3. A legal easement can be acquired by oral agreement.
- A legal easement can be acquired by presumed grant or prescription.
- A legal easement can be acquired by express or implied reservation.
A legal easement can be acquired by oral agreement.
statement C is wrong. To create an express legal easement it must be granted by deed.
For the last 45 years Megarry, freehold owner of Serjeants’ Close, has maintained a greenhouse on the boundary with Tree Court, and has used a convenient short cut over Tree Court.
The freehold of Tree Court has just been bought by Wade who proposes to fill the site with a multi-storey car park.
Which one or more of the following easements can Megarry try to claim over Wade’s land?
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1. The right to trespass.
2. The right to light.
- The right of storage on Wade’s land.
- A right of way over Wade’s land.
The right to light.
A right of way over Wade’s land.
Correct. Megarry can try to claim a right to light and a right of way over Wade’s land
In which one of the following ways can Megarry claim a right of way over Wade’s land?
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1. By implied grant.
2. By prescription.
3. By deed.
By prescription.
Correct. Megarry has used the right of way for 45 years and may successfully claim that he has the benefit of an easement by prescription. Megarry may have acquired an easement by lost modern grant already or he can claim under both periods in s.2 Prescription Act 1832 (20 and 40 years) if he brings a court action. The right is capable of being an easement and it has been enjoyed as of right, that is, without force, secrecy or permission. There seems to have been continuous use and the right is exercised by one fee simple owner against another.
There is no evidence that there has been a sale of part and so the easement has not be created by implication nor is there evidence of an express agreement between the parties by deed.
Megarry may also be entitled to a right to light.
Which one of the following statements most accurately describes the legal position?
- Megarry has a right to light by implied consent.
- Megarry can claim a right to light through prescription.
- Megarry can claim a right to light through strict necessity.
- Megarry cannot claim a right to light as it is too vague a benefit to be classified as an easement.
Megarry can claim a right to light through prescription.
To “lie in grant” Megarry must claim the right to receive light through a specific opening or window. The amount of light that can be claimed as an easement is limited to that required for the use of the building for the ordinary purpose for which it was constructed. A greenhouse is a building (see Allen v Greenwood) and is entitled to the amount of light needed to cultivate plants. Megarry will be able to claim under lost modern grant if he fulfils all the common law conditions. If not, as an alternative, he could bring a court action under s3 Prescription Act 1832 if the right has been used for 20 years without written consent. The claim cannot be defeated because of force, secrecy or by verbal consent and neither does the user need to be by one fee simple owner against another. This relaxation of the common law conditions only applies to easements of light.
There is no evidence that there has been a sale of part and so the easement has not be created by implication nor is there evidence of an express agreement between the parties by deed.
Andrew owned a large freehold house which he converted into two semi-detached houses. He sold the freehold of one of the houses (House A) and retained the other (House B) as his dwelling-house. All the drains and sewers serving House A pass under the garden of House B. These were not mentioned in the transfer of House A.
Which one of the following statements most accurately describes the legal basis upon which the new owner of House A can claim to have an easement of drainage under House B?
Hide answer choices
1. Prescription or presumed grant.
2. Express grant.
3. Express reservation.
4. Implied grant.
- Implied reservation.
Implied grant.
The new owner of House A has acquired the rights as a result of implied grant. You have been told that the transfer did not mention these rights so they have not passed to the owner of House A by virtue of an express grant and, as all the land was owned and occupied by Andrew prior to the sale, prescription cannot apply in this case as Andrew cannot acquire easements over his own land.
Using the same facts as in the previous question, by which one or more of the following implied grant methods was the buyer most likely to have acquired an easement of drainage?
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1. Strict necessity.
2. Common intention.
3. Wheeldon v Burrows.
4. Section 62 Law of Property Act 1925
Common intention.
Wheeldon v Burrows.
Section 62 Law of Property Act 1925
Strict necessity is unlikely to apply as there would be alternative methods of drainage and sewerage (such as cess pits/soak-aways) and so the land could be used without the easement.
The use of the drains and the sewers may have been in the intention of the parties and so common intention could be available (Wong v Beaumont Property Trust Ltd) - if a common purpose if known to the parties, the right claimed is needed in order for the common purpose to be fulfilled.
Also, as Andrew used the drains before the sale of part, the right was a ‘quasi easement’ which is then converted into an implied easement in the sale of part transfer in favour of the buyer, provided that the use was continuous, apparent (by means of manhole covers, for example) and necessary for the reasonable enjoyment of the land.
S62 may also apply as, although there has not been diversity of occupation immediately before the sale of part, if the use is continuous and apparent (as it appears to be on the facts), s62 will have the effect of converting the right or privilege into an easement
Using the same facts as in question 6, decide whether the following statement is True or False:
If Andrew had sold House B instead of House A, he would have been entitled to an easement of drainage by implied reservation.
TRUE. As a seller on a sale of part Andrew can only rely on the implied reservation methods of strict necessity or common intention. Although, it is unlikely strict necessity would apply, it seems more likely common intention might work here (for the reasons set out in Question 7). A seller cannot rely on Wheeldon v Burrows because the court will not allow the seller to ‘derogate from his grant’.
Which of the following statements are correct?
- A legal easement, however created, must be registered as a land charge to bind a purchaser of land with unregistered title.
- An expressly created legal easement may be protected by registration under section 27 LRA 2002 or as an overriding interest under Schedule 3 paragraph 3 LRA 2002 against a purchaser of a registered title.
- Schedule 3 paragraph 3 LRA 2002 only protects easements created over land with registered title by implication on a sale of part or by prescription.
- Expressly created equitable easements must be protected by a notice on the register in registered title, or registered as a D(iii) land charge in unregistered title, in order to bind a purchaser.
- Until registration, an expressly created easement by deed over registered land remains equitable only.
Schedule 3 paragraph 3 LRA 2002 only protects easements created over land with registered title by implication on a sale of part or by prescription.
Expressly created equitable easements must be protected by a notice on the register in registered title, or registered as a D(iii) land charge in unregistered title, in order to bind a purchaser.
Until registration, an expressly created easement by deed over registered land remains equitable only.
All legal easements, however created, bind the world in the unregistered system. As we saw in question 1, in the registered system an expressly created legal easement must be protected by registration and can never be overriding
Alice owned the freehold of a factory and in January 2007 granted a 10 year lease by deed of part of the building to Sarah. During the lease, Alice allowed Sarah to park her car in the courtyard outside the factory. The courtyard was owned by Alice and was not included in the lease. In February 2017 Alice granted Sarah a further 10 year lease by deed on exactly the same terms as the original lease, without mentioning the agreeement as to parking.
Which one of the following statements is correct?
- Sarah has an oral easement to use the courtyard to park.
- Sarah has an implied easement to use the courtyard under section 62 LPA 1925.
- Sarah has no right to park as it was not expressly included in her renewed lease.
- Sarah has an easement by prescription as she has used the courtyard since 2007.
Sarah has an implied easement to use the courtyard under section 62 LPA 1925.
The second lease in February 2017 counts as a sale of part and Sarah’s pre-existing licence to park can be elevated to the status of an easement (see Wright v Macadam) as it had all the necessary characteristics of a valid easement, by being implied into the lease deed. Easements cannot be created orally and prescription will not work, as she has not used the right for 20 years and has been using it with permission, hence not satisfying the common law conditions.
- A landowner owns a field (which is registered at Land Registry) abutting a main road. A buyer buys part of the field which has no direct access to the main road. The landowner agrees to grant the buyer a right of way over the part of the field the landowner still owns.
Which one of the following statements represents the best advice to ensure that the buyer will have an indefeasible right of way over the landowner’s part of the field to gain access to the main road?
1. It will be necessary to document this arrangement which may be done by a deed from the landowner to the buyer. Only the landowner’s signature is needed.
2. It will be necessary to document this arrangement which may be done by a deed from the landowner to the buyer. Only the landowner’s signature is needed but his signature must be witnessed by a third party and the buyer must register the deed at the Land Registry.
3. It will not be necessary to document this arrangement. The landowner’s word is sufficient.
4. It will be necessary to document this arrangement which may be done by a deed from the landowner to the buyer. Only the landowner’s signature is needed but his signature must be witnessed by the buyer.
5. It will be necessary to document this arrangement which may be done by a deed from the landowner to the buyer. Only the landowner’s signature is needed but his signature must be witnessed by a third party.
Option B is the best answer. For the buyer to have an indefeasible easement the easement must be expressly created by deed and registered at the Land Registry.
It is not possible to grant a legal easement orally so Option C is wrong.
Option A is wrong because for a deed to be valid an individual’s signature must be witnessed.
Option D is wrong because the witness must be a third party.
Option E is correct but for the easement to retain its legal status it must be registered as a registrable disposition at the Land Registry.
The freehold owner of a detached house (‘the Property’) is concerned about the extension proposed by her new neighbour. The proposed extension will make parts of the Property’s garden very gloomy.
Does the Property have an easement?
1. Yes, the Property has an easement of light for the garden but must show an infringement.
2. Yes, there is a clear easement of light which would prevent the new neighbour’s development.
3. No, the Property does not have an easement as no new negative easements can be created.
4. No, the Property does not have an easement of light as there is no defined aperture in a garden.
5. Yes, the Property has an easement to have an uninterrupted view from her garden and can stop the new neighbour’s extension.
The correct Option is D.
The right to light is a recognised negative easement (therefore, Option C is wrong) but there is no general right to light (therefore, Options A and B are wrong). A right to light must be via a defined aperture and it is hard to see how this would be a garden generally without a specific aperture benefiting from the right.
Option E is wrong as there can be no easement for an uninterrupted view.
In 1989, a man purchased a freehold property consisting of a farm house and outbuildings including a large separate barn (‘the Barn’). The Barn has its own access to the main road, but the man has always used a track (‘the Track’) running past the main house to access the Barn. He prefers the Track as it avoids a dangerous right-hand turn. Last year, the man sold the Barn to a woman. The transfer included an express right over the main point of access but made no mention of the Track.
Which of the following answers best describes how an easement over the Track has been created?
1. This is an easement of necessity which allows the woman to access the Barn.
2. This is a common intention easement and the woman can only fulfil the purpose with the easement.
3. The easement is created by Wheeldon v Burrows as a quasi-easement in use at the time of the sale.
4. The easement was expressly created in the transfer to the woman.
5. The easement was created by prescription as it has been used for over 20 years.
The correct Option is C.
This cannot be an easement of necessity as there is an alternative means of access and therefore, the Barn is not landlocked. Option A is, therefore, wrong.
There is no indication of a common purpose or intention in the facts, so Option B is wrong.
The transfer to the woman contained an express grant only in relation to the main point of access, not the Track. Option D is, therefore, wrong.
This cannot be an easement by prescription as, although the use started in 1989, it could not become an easement until there was a separate dominant and servient owner. This only happened when the Barn was sold last year. Option E is, therefore, wrong.
The man exercised a quasi-easement over his own land. On the transfer to the woman, this became a legal easement on the basis that the easement was clearly continuous and apparent, necessary for the reasonable enjoyment of the land (to avoid the busy junction) and in use at the time of the sale. Option C is, therefore, correct.
A freehold owner granted a 25-year lease of their property (‘the Property’). Five years after the lease was created, the freehold owner gave informal permission for the tenant to erect a sign upon the freehold owner’s adjoining land advertising the tenant’s business. Last month, when the lease came to an end, the tenant purchased the freehold to the Property. The transfer made no mention of the sign.
Which of the following answers best describes how an easement in relation to the sign has been created?
1. The easement was created by s 62 LPA 1925 from an existing privilege upon the transfer of the freehold to the tenant.
2. The easement was expressly created on the transfer of the freehold to the tenant.
3. This is an easement of necessity which allows the tenant to erect a sign.
4. The easement was created by prescription as it has been used for over 20 years.
5. The right is not capable of existing as an easement as it does not accommodate the dominant tenement.
The correct Option is A.
The easement in relation to the sign was created by implication by s 62 LPA 1925. There was an existing privilege (the freehold owner’s informal permission to erect the sign), there was diversity of occupation (the freehold owner owning the servient land and the tenant occupying the Property) and there was a conveyance (the transfer of the freehold to the tenant). The effect of the conveyance is to create a legal easement in relation to the sign.
There is no mention of the easement in the transfer of the Property. Option B is, therefore, wrong.
Although the easement has been exercised for over 20 years, most of this period was whilst the Property was let. A prescriptive right can only be created as between two freehold owners. Option D is, therefore, wrong.
It is hard to consider any circumstances in which an easement relating to a sign could be an easement of necessity. Option C is, therefore, wrong.
Option E is correct in relation to the legal principle but does not answer the question asked and is, therefore, not the best answer.
Last year, a client bought a registered freehold cottage, without consulting a solicitor. The seller had built the cottage 20 years ago and occupied it from then until completion of the sale. The seller also retained some land between the cottage and the main road. The transfer deed to the client made no reference to a right to use the drains serving the cottage which run under the seller’s retained land and which connect to the sewer under the main road. Manhole covers on the client’s land indicate the presence of the drains. The seller has now sold the retained land and the new owner is disputing the client’s right to use the drains.
Which of the following statements best explains how the client may claim an easement of drainage in these circumstances?
1. As there was diversity of occupation at the time of the transfer to the client, the client may claim an implied easement under section 62 of the Law of Property Act 1925.
2. The client may claim an implied easement of necessity, as the cottage cannot be used without a right of drainage.
3. The client may claim an implied easement under the rule in Wheeldon v Burrows.
4. The client may claim a prescriptive easement at common law.
5. The client may claim a prescriptive easement under the doctrine of lost modern grant.
Option C is correct because the rule in Wheeldon v Burrows will imply an easement on a sale of part where there is a continuous and apparent quasi-easement which is necessary for the reasonable enjoyment of the dominant tenement and which is in use at the time of the sale of part of the dominant tenement. All of these elements are present on the sale to the client.
Option A is wrong as there was no diversity of occupation at the time of the transfer to the client. The cottage was owned and occupied by the seller. In any event, diversity of occupation is only needed to create an easement under s62 LPA where there is a licence or privilege in favour of the dominant land, which then becomes an easement on completion of the sale of that dominant land. (Note that an easement may have been created under s62 LPA 1925 in the circumstances in this question as there was a continuous and apparent quasi easement in use at the time of the sale for the benefit of the land being sold – see P&S Platt Ltd v Crouch and Wood v Waddington). It is, however, the reference to there being diversity of occupation at the time of the transfer that makes this option wrong).
Option B is wrong because an easement of drainage is not a strict necessity here. It is possible to use the cottage without the easement of drainage by installing a septic tank or cesspit.
Option D is wrong because a common law prescriptive easement is based on a presumption of continuous use since 1189 where the easement has been used continuously for 20 years. Although the presumption is raised on the facts, it is rebuttable here because the cottage was only built 20 years ago. It can therefore be confirmed that use of the easement did not run all the way back to 1189.
Option E is wrong as the period of the seller’s use is not relevant here when deciding if there is a prescriptive easement. The client would need to use the drains for 20 years before such an easement could be considered.
