Chapter 7: Easements and profits

Question 1

What is an easement?

Answer 1

A right which benefits one piece of land over another piece of land

Question 2

What is the servient tenement?

Answer 2

The burderned land

Question 3

What is the dominant tenement?

Answer 3

The benefitting land

Question 4

What are the four essential characteristics of easements?

Answer 4

• There must be a dominant and a servient tenement
• The easement must confer a benefit on the land (not just a personal right)
• The dominant tenement and servient tenement must be in separate ownership
• The right must be the type recognised as capable of being an easement

Question 5

What is a profit a pendre in gross?

Answer 5

• A right to take something from land belonging to another
• Not attached to land

Question 6

What is a profit a pendre appurtenant?

Answer 6

• A right to take something from land belonging to another
• Attached to land

Question 7

As a general rule, how must a legal easement or profit be created?

Answer 7

As a general rule, a legal easement or profit must be created by deed and can be for a fixed or indefinite period

Question 8

If a deed is not used to create an easement or profit, can there be an enforceable contract in equity?

Answer 8

Equity may recognise an enforceable contract to grant an easement or profit if the grant is:

• In writing
• Signed by both parties
• Contains all agreed terms

Question 9

Aside from deed, how else can an easement be created?

Answer 9

• Express grant or reservation
• Implied grant or reservation
• Prescription
• Statute

Question 10

How can an easement be created by express grant or reservation?

Answer 10

If a landowner is selling part of land, they must consider whether land being sold requires rights over land that they are retaining.

If the land being sold requires rights over land being retained, the landowner will grant rights to benefit land being sold

If the land being retained requires rights over land being sold, the landowner will reserve rights over retained land

Question 11

Should easements and profits appurtenant pass on sale even if they are not specifically mentioned in the transfer document?

Answer 11

• Yes, by statute a conveyance of land includes all existing liberties, privileges, easements, rights and advantages appertaining to land.
• Easements granted by statute must be apparent and continuous
• Grant of easement by statute can be excluded by express wording in conveyance

Question 12

What is an easement by necessity?

Answer 12

The only easement that can be implied by necessity is a right of way

An easement by necessity will be implied when a piece of land is landlocked

Question 13

What are common intention easements?

Answer 13

Implied to give effect to what both parties intended:

• There must be a common intention on how land was to be used
• It must be impossible to give effect to common intention without the easement

Question 14

What is an ancilliary easement?

Answer 14

Easement which allows for fulfillment of another interest

E.g. Grant of right to take water from spring implies an ancilliary right of way to that spring

Question 15

Will an easement implied by existing use pass on sale?

Answer 15

Yes, but only where the dominant and servient land were previously held by one landowner if the easement is:

• Continuous and apparent (in regular use at time of sale and obvious on reasonable inspection)
• Necessary for the reasonable enjoyment of land
• Had been used by seller for the benefit of land being sold

Question 16

As a general rule, easements will not be implied in favour of the person granting the rights. What is the exception to this?

Answer 16

• Easements of necessity
• Intended easements

Question 17

What are the requirements to obtain an easement by prescription?

Answer 17

• Benefit used and unchallenged for over 20 years
• Used benefit as a right (did not request permission or make payment for benefit)

Question 18

Is an easement gained by prescription treated as a legal or equitable interest?

Answer 18

An easement gained by presciption is treated as an equitable interest

Question 19

How must a legal easement in registered land be protected?

Answer 19

To protect a legal easement in registered land, the easement must be registered.

Benefit: Appears as notice on Property Register of dominant tenement

Burden: Appears as notice on Charges Register of servient tenement

Question 20

How must a legal easement in unregistered land be protected?

Answer 20

Equitable easements in unregistered land must be registered as a D(iii) land charge