3) Easement Flashcards
(144 cards)
1
Q
Easement
A
- A proprietary right to use land which belongs to someone else.
- More limited than an exclusive right to occupy or use.
2
Q
Dominant Tenement
A
Person who receives the benefit of the easement is the grantee and their land which is benefitted by the easement
3
Q
Servient Tenement
A
Person who grants the easement land is the grantor and their land, which is burdened by the easement is the servient tenement
4
Q
Examples of different easements
A
- Rights of way
- Drainage
- Storage
- Parking
5
Q
Legal easements
A
- An easement is capable of being a legal interest in land if the duration of the right is eqiovalent to one of the two legal estates.
- ie absolute in possession
- ir a term in years absolute
6
Q
Equitable easements
A
If an easement is not granted for the duration equivalent to freehold or leasehold estate then it can only be equitable
7
Q
Example of easements that are equitable
A
Right to park granted “until the alternative parking facility is completed”
* Not granted forever
* Or for a set period of time
8
Q
What is the most common type of easements?
A
Positive Easements
Allow the holder to use the servient land in a particular way
9
Q
What is a rare type of easement?
A
Negative Easements
* Do not involve entering neighbouring land, as the right conferred can be enjoyed from the holder’s land.
10
Q
Example of a negative easement
A
A right to light enjoyed from the holder’s land and requires the landowner to refrain from blocking the light.
* No general right to light, but can be defined through a window.
11
Q
Types of rights that are not easements
A
- Quasi-easements
- Public rights
- Licences
- Profits a prendre
- Restrictive covenents
- Grants
12
Q
Quasi-easements
A
- Landowners use paths on their own land, they are not enjoying easements.
- They are using paths as owners of the land.
- However, the use of pahts could become easements if ever the land was divided.
Nebulous or potential easements
Not an easement
13
Q
Public rights
A
- Public rights can be similar to easements.
- eg Easements
- Can be exercised by general public
Not an easeement
14
Q
Licences
A
A licence can authorise somebody to use land in the same way as an easement.
* A licence is not a proprietary right in land
* Confers a personal right which cannot be enforced against a third party.
Not an easeement
15
Q
Profits a prendre
A
- An easement does not confer on the holder the right to take anything, such as produce, animals, fish or minerals from the land
- A profit-a-prendre confers such a right.
- The rules governing profits are similar to those governing easeements
Not an easement
16
Q
Restrictive Covenants
A
- An easement confers a right over the servient land.
- As a consequence servient owner cannot do anything over the servient land which would interfere wi the right.
- By contratst, the primary function of a restrictive coveneant is to prevent something being done on servient land.
Not an easement
17
Q
A
18
Q
A
19
Q
A
20
Q
Grant
A
Exists where a landowner sells or leases part of their land and gives the buyer /tenant an easement over the land which they have retained.
21
Q
A reservation
A
Exists where a landowner sells or leases part of their land to a buyer/tenant and retains a right over the land sold or leased.
* Reservation is strictly construed against the person reserving it, they are in a position to reserve what is required and are assumed to have done so.
* Attempt to extend the right will fail.#
22
Q
Cordell v Second Clanfield Properties Ltd
Reservations
A
- Cordell sold development land and reserved a right of way over the estate road for the benefit of the retained land.
- 12 ft wide access way serving Cordell land
- Cordell sought a declaration that he was entitled to a 28 ft right of way.
- If this is what was intended this should have been specifically stated on the transfer deed, making sure the reservation covered future needs.
23
Q
Express Creation
A
Esements are mostly created expressly
* Usually created with transfer deed or lease
* Can be created as part of a separate deal, independent of transfer or lease
24
Q
Implied creation
A
Easements may not necessarily be expressly created.
May be deemed to have been created impliedly by one of several methods.
If impliedly created, it is effectively written into the document from which it was originally omitted
25
Prescription
* Easements ay also arise by **prescription** or **long use**
* Generally must be **at least 20 years**, with no express grant or reservation
* = **legal easements**
* Open exercise of easement for requisite length of time, the servient owner is deemed to have tolerated the creation of the easement
26
Three types of prescription
* Prescription at Common Law
* Prescription under the doctrine of Last Modern Grant
* The Prescription Act 1832
27
Basic Criterion of the easement by prescription
* **Continuous user** - reasonably regular use by a freeholder or successive freehold owners against a freeholder
* **As a right** - the right must have been used without force, without secrecy and without permission.
28
When will prescription succeed under the Prescription Act 1832?
* Force? Secrecy? Permission?
* If the user can prove uninterrupted enjoyment for the 20 year period.
* No use for one year or more is interruption.
29
Mills v Silver
## Footnote
Prescription
* Access to a farm gained over a track on adjoining land from 1922 by the Claimaints and their predecessors.
* Track was used between 1922 and 1981 whenever it was dry enough, with the owners knowledge.
* No express permission was ever granted.
* Claimants used the track infrequently between 1981 - 85
* They tried in 1987 to lay a stone track to make it passable - landowners sued.
**Use was enough to use reasonably regularly, and the track had bee used without *force, secrecy or permission***
30
Winterburn v Bennett
## Footnote
Prescription
* Customers to Chippy Shop use adjoingin carpark belonging to the Conservative Club.
* Conservative Club erected a sign and replace it over time.
* The sign said that the carpark was private for patrons
* Claim was rejected, use was **force not "as of right"**
31
Can easements be legal interests?
Yes if they are granted for a term equivalent to a freehold or leasehold estate.
32
Can easements for an uncertain duration be legal interests?
No, these can only ever **equitable in nature**
33
Do negative easeements involve entering servient land?
No
34
Legal test for determining an easement?
1. Right must be **capable** in principle of being an easement - satisfy *Ellenborough Park* criteria
2. The right must not be prevented from being an easement by a **"disqualifying factors"**
3. Must have been **acquired** as an easement
35
Disqualifying Factors
## Footnote
Legal test for determining an easement?
* Additional compulsory expenditure by the servient owner
* Use which amounts to exclusive possession
* Or permission
36
Right must have been **acquired as an easement**
## Footnote
Legal test for determining an easement?
* By complying with the statutory formalities for an epress grant or reservation
* By one of the recognised methods of implied axquisition; or
* By prescription
37
The capability rules: *Re Ellenborough Park*
## Footnote
Legal test for determining an easement?
* There must be a dominant and servient tenement
* The right must accomodate the dominatn tenement
* There must be diversity of ownership
* The right must "lie in grant"
38
Ellenborough Park Case
* Developed for housing, the conveyances of the individual plits included the enjoyment of the pleasure ground.
* During WW2 park was requisitioned
* Question was whether successors were entitled?
* **Court applied the test ad concluded tha tthe right to use the garden was capable of being an easement**
39
There must be a dominant and servient tenement
## Footnote
**Legal test for determining an easement?** Ellenborough Park Case
* Two identifiable pieces of land
* One which benefits from the exercise of the right (the dominant tenement /land).
* One which is burdened by its exercise (The servient tenement /land) *London & Blenheim Estates Ltd*
**Cannot be exist "in gross", meaning it cannot be exercised by the holder independently of the land: that would be a licence or personal right. An easement cannot exist unless there is a dominant tenememt which benefits**
40
An easement cannot exist *"in gross"*
| Hawkings v Mutter
## Footnote
**Legal test for determining an easement?** Ellenborough Park Case
Meaning it cannot be exercised by the holder independently of the land: that would be a licence or personal right.
An easement cannot exist unless there is a dominant tenement which benefits
41
The right must accommodate the dominant tenement
## Footnote
**Legal test for determining an easement?** Ellenborough Park Case
Must have some direct **beneficial impact** on the dominmant tenement.
* Does the right *benefit any owner *of the land?
* Does it *cease to be of use once the dominant owner has parted with the land*?
* Does the right make the dominant land a *better or more convenient property*?
* Does the right *add value or amenity* to the dominant land?
## Footnote
P&A Swift Investments Ltd v Combined English Stores Group plc
42
Does a right accommodate the dominant tenment?
43
Hill v Tupper
## Footnote
Does a right accomodate the dominant tenement? **Business**
* Right claimed as an easement was a right to put boats on a canal adjoining the claimants land.
* Right did not accommodate the dominant tenement as it did not benefit the land itself
**Simply benefitted the business which the claimant happened to carry out on the land**
44
Moody v Steggles
## Footnote
Does a right accomodate the dominant tenement? **Business**
* Right to hang a sign on an adjoining building which pointed down a side street to the claimant's pub = **an easement**
* Sign benefitted a long established business which had become the normal use of that land.
45
Does a right accomodate the dominant tenement? **Business**
Is the business a necessary incident to use of the land, or is a completely unconnected business.
If there is a nexus between the land and the business run from the land, **a right that benefits the business will also benefit the land**
46
How close does the dominant and servient land need to be?
**Sufficiently proximate to each other**
* Normally adjoining but this need not be the case.
## Footnote
Pugh v Savage
47
Pugh v Savage
## Footnote
Proximity
There was a right of way over one field to get to another.
* A third field was in the middle
* Right of way was still held to benefit dominant tenement even though not adjoining.
* **Close enough** for the dominant land to derive a benefit from the right
48
There must be no common ownerhsip of the two tenements?
## Footnote
**Legal test for determining an easement?** Ellenborough Park Case
* Must be owned by different owners.
* Not possible for an owner to claim ane easement over their own land.
* Ownership could be either a leasehold or freehold estate
## Footnote
Roe v Siddons
49
Benefits enjoyed over one's own land are...?
**Quasi-Easements**
* Capable of becoming easements if the land is ever partitioned
50
Is there diversity of ownership if landowner owns freehold and part of the land is leased to the tenant?
Yes
Diversity of ownership
51
If the land comes into common ownership, what happens to the easement?
The easements would be extinguished
52
The right must lie in grant
## Footnote
**Legal test for determining an easement?** Ellenborough Park Case
Must be capable of forming the subject matter of a deed. Ie
* Granted by a capable grantor to a capable grantee
* Capable of reasonably exact description
* Judicially recognised
53
Granted by a capable grantor to a capable grantee?
## Footnote
The right must lie in grant
Legal test for determining an easement? Ellenborough Park Case
* Person who grants right must have the power to do so
* Must be over 18 and own the legal estate.
* Grantee must also be capable
54
Is it possible to grant an easement to a group ie "residents of the village"?
No as the body of people can change
55
Capable of reasonably exact description
## Footnote
The right must lie in grant
Legal test for determining an easement? Ellenborough Park Case
Nature and extent of the right must be clear enough for the court to know exactly what is to be enforced.
* By reference to a plan for examplle
* Rights that are too vague will not be enforced eg * Right to a "scenic view" was rejected*
56
Is it possible to have an easement for " a scenic view"
* Rights that are too vague will not be enforced eg *Right to a "scenic view" was rejected*
## Footnote
William Aldreds Case
57
Judicially Recognised forms of easements
## Footnote
The right must lie in grant
Legal test for determining an easement? Ellenborough Park Case
* Right of way
* Right of drainage and other rights through pipelines
* Right of support
* Right to us sporting and leisure facilities
* Right to use land for recreational purposes
* Right of storage
* Right to park
**Non exhaustive list - develops gradually by analogu**
58
Where did parking rights develop from?
* Storage easements
59
Dyce v Lady James Hale
## Footnote
Judicially recognised rights
Not an exhaustive list
Can be developed through analogy.
60
New types of easement
Must not be negative.
Would unduly restrict the servient owner's use and desirable development of their land.
61
What is the appropriate way to restrict development on the sale of land?
Woild be to impose a covenant on the buyer not a negative easement.
62
**Disqualifying Factors**
## Footnote
Legal test for determining an easement? Ellenborough Park Case
* The exercise of the right must not amount to **exclusive posession** of the servient tenement.
* The exercise of the right by the dominant owner must not involve additional, unavoidable **expenditure** by the servient owner.
* The exercise of the right must not depend on **permission** being given by the servient owner.
63
**No exclusive possession**
## Footnote
**Disqualifying Factors**
Legal test for determining an easement? Ellenborough Park Case
* Something that prevents servient owner's use of servient land
No clear test for what amounts to exclusive possession
* Two tests - *The Ouster Principle* and *Possession and Control*
64
The ouster principle
## Footnote
Test for exclusive possession
* Right to park 6 cars from 0830 - 1800
* B argued that this was too intense to be capable of being an easement
* CoA applid the ***Reasonable Use*** Test,
**B was left with no reasonable use of the land, for parking during the time the spaces would be needed, or any other purpose**
= too intense use rendered ownership of land illusory
## Footnote
Batchelor v Marlow
65
Possession and Control Test
## Footnote
Test for exclusive possession
* Right to park on top of cliff at Shetland that belonged to J
* M claimed this amounted to exclusive possession, had no reasonable use of the space left
* Asked whether servient owner retains ultimate possession and control of the land, subject to reasonable exercise of the right
**Sole use for a limited purpose is not, inconsistent with the servients owner's retention of possession and control or inconsistent with nature of the easement.**
## Footnote
Not binding, but persuasive
66
Exclusive possession: which test?
* Ouster principle is binding in law ***Kettel v Blomfold***
* Applied Batchelor in the ***Moncrieff*** way
* Could still do anything he liked except interfere with parking.
**Test seems to be changing to favour the person claiming the easement on the basis of exclusive possession**
67
What rights typically raise issues of exclusive possession?
* Rights to store and park
* Provide that the servient landowner retains control of the space and is theoretically able to do anything with it **except interfere with the right** (ie the parking / storage)
* Therefore will probably not be disqualifieed
68
**No additional expenditure**
## Footnote
**Disqualfying Factor**
Legal test for determining an easement? Ellenborough Park Case
* If requires the servient owner to spend extra money
* The right is disqualfied from being an easement as a **positive obligation is inconsistent with the concept of an easement**.
* Must also enable the dominant owner onto the land to carry out any repairs at the dominant owner's expense
69
Jones v Pritchard
## Footnote
No additional expenditure
* Must allow the dominant owner onto the servient land to carry out any repairs t the dominant owner's expense
70
Regis Property Co Ltd v Redman
## Footnote
**No additional expenditure**
* A right to supply of hot water was held not to be an easement as supplying hot water to the claimant meant that the servient owner was forced to spend money.
71
Rance v Elvin
## Footnote
No additional expenditure
Court held that an easement for a water supply even though the meter was on the servient land and the servient ownerwas solely responsible for the payment of bills.
**Servient owner was obliged to allow wter through the pipesandthe dominant owner was liable under a quasi - contractual obligation to pay**
72
No permission
## Footnote
Disqualfying Factor
Legal test for determining an easement? Ellenborough Park Case
Express permission will almost inevitably be given when a right is first used. After the initial gtant, the dominant owner must exercise **the benefit as of right**
*
## Footnote
Green v Ashco Horticultural Ltd
72
Green v Ashco Hort Ltd
## Footnote
**No permission**
Disqualfying Factor
Legal test for determining an easement? Ellenborough Park Case
* The claimant claimed a right to park a van on the D's land was an easement
* Claimant always moved van if asked to do so by the servient owner.
* D only exercising thye right so far as the servient owner permitted. In moving the van on rerquest, the D was actually acknowledging that he did not park on the land as of right but by permission.
**No easement to park**
73
If certain factors are present, the right cannot be an easement?
* If the use amounts to **exclusive possession**
* If the use requires **additional payment** by the servient landowner
* If the use is exercised **with permission**
74
Express Creation if easements
* Commonly arises when land is sold or leased, set out in writing in the transfer deed or lease.
* Easements can be created as part of a separate deal.
**High degree of formality required**
75
Formalities of express **legal** easements
* Created by deed **LPA 1925 s52**
* Clear and intended to be a deed
* Delivered (ie dated)
* Signed by grantor and dated
* Registered at the land registry as a burden
76
Formalities of express **equitable** easements
Easements for an uncertain term do not fall within the definition of legal easements = **inherently equitable easements**
* Must be in writing
* Must be signed by the grantor
* No substantive registration is needed for an equitable easement to exist.
77
**Failed** legal easements may be **equitable**
* Easements which fall within the definition of legal easements but have not been created correctly.
* May be recognised as **estates contracts**
* Equality may interpret the failed legal transaction as an **enforceable contract to create a legal easement**
* Must complu with the formalities for an estate contract **LP(MP)A 1989 s2**
* No substantive registration requiree
78
Formallities for an equitable easement to exist where there has been a failed legal easement
* Must include all expressly agreed terms
* Must be made in writing
* Must be signed by both parties
78
Methods of implied acquisition
* Necessity
* Common intention of the parties
* The rule in **Wheeldon v Burrows**
* *LPA 1925 s62*
79
What happens when a method of implied acquisition applies
* Easement is impied into a lease it will come to an end when the lease comes to an end.
* Implied into a transfer deed - last for duration of the freehold
80
Implied legal easements
* An easement which is implied into a transfer deed or a legal lease.
* Takes status from the document it is implied into
80
Implied equitable easements
* If the easement is implied into a contract or an equitable lease, it is an implied equitable easement
81
Implied by necessity
* Claim to have been granted impliedly by necessity when it can be shown that its existence **is essential in order that the use of the dominant tenement can be made**
* *Not enough to add to the enjoyment of land*
* Theoreically possible though rare to find that an easement has been impliedly reserved by necessity for benefit of land retained.
* **Veery narrow scope**
## Footnote
Union Lighterage Company v London Graving Dock Company
81
Union Lighterage Company v London Graving Dock Company
## Footnote
Implid by necessity
* An easement of necessity is an easement without which the property cannot be used at all
* Not merely necessary to the reasonable enjoyment of the property
82
Pryce v McGuiness
* Easements will only be implied **by necessity** in the cases of landlocked land/
* Eg Right of way
* eg Drainage, sewerage and supply of electricity were highly advantageous but not essential to be able to use the dominant land
83
Will an easement be implied by necessity if alternative access is inconvenient or difficult?
No it must be essential
83
84
For an Implied acquisition by common intention, does an easement need to be necessary for the enjoyment of the land?
No
85
When might there be implied acquisition by common intention
* Land has been sold/ leased to another for a particular purpose and that purpose cannot be fulfilled withot the easement sought.
* Parties must have had a specific intention that the land was to be used for a certain prupose in circumstances where the easement is necessary to achieve that specific intentinon.
86
Common intentnion meaning
Lnd sold or leased for a particular purpose and that purpose cannot be fulfilled without the easement sought.
Parties must have had a specific intention that the land was to be used for a certain purpose.
Court is satisfied that the easement claimed is necessary to achieve specific intention.
87
Is a general intention as to how property shall be used enough to obtain implied acquisition by common intention?
* No
* Parties myst have intended the property be used in a **definite and particular** manner
**Pwllbach Colliery Co Ltd v Woodman**
88
When might an easement be implied by the common intention of the parties?
When it is necessary for the enjoyment of some expressly granted easement
*eg a right to park in a parking space usually reqeuires a right to enable the holder to reach the parking space*
89
Wong v Beaumont Property Trust Ltd
* Landlord granted a lease of basement premises to a tenant.
* Two covenants: to use the basement premises only as a restaurant, to comply with H&S regulations.
* It was essential to do this to continue to operate the restaurant.
* No easement of venitlation.
* Landlord refused ventilation easement.
* Wong claimed it should be implied into the lease
90
The requirements of common intention
* Land is sold or leased for a particular purpose
* Purpose is known to both parties
* Easement is essential to achieve the common purpose
91
Donovan v Rana
* An easement to provide services such as electricity and sewerage was implied where the common intention of the parties was that the plot in question was purchased as a building plot and developed as such.
* Plot had been sold with benefit of planning permission for a single dwelling
* Enough to show common intention
91
Wong v Beaumont Property Trust Ltd
## Footnote
Common intention and reservations
* Easement was implied into the original lease as a grant by the landlord to the tenant
* Court also said that the method could be used to imply a reservation in favour of the original seller or landlord.
* **Heavy burden of proof to show that seller or landlord had openly exercised the right proper to the first transaction**
92
Yeung v Patel
## Footnote
Common intention and reservations
* Refused to extend an express reservation relating to renewal of gas pipes across the servient land to include laying new pipes
* Because the claimant landlord had had two opportunities to reserve this expressly
92
How is an easement granted via common intention?
* Granted
* Reserved
93
When will an easement be implied by common intention?
* When the dominant land has been sold or leased for a **specific purpose**
* The **purpose is known** to both parties
* The easement claimed is **essential** to achieve the **common purpose**
94
Where a seller or landlord wishes to rely upon an easement having been impliedly reserved by common intention requires....
A **heavy burden** to show a specific easement was **mutually intended**
95
As a method of acquisition, *is implied by common intention* narrower or wider in scope than the rule in *Wheeldon and Burrows*?
* It is wider
* It can imply legal easements into deeds and equitable easements into contracts
96
Can an easement have been impliedly reserved by the rule in *Wheeldon and Burrows*?
No
96
When is the method of implied acquisition via the rule in *Wheeldon v Burrows* available?
* Where someone is claiming to have been **granted** an easement impliedly.
97
The requirements of **Wheeldon v Burrows**
* Only applies where the right being claimed would have been a **grant** to the claimant
* Right must have been **enjoyed as a quasi-easement** by the selelr or the landlord before the land was divided.
* Quasi easement must have been **"continuous and apparent"**
* *Continuous* = degree of permanence; *apparent* = from careful inspection
* Quasi-easement must be **necessary** for the reasonable enjoyment of the dominant land.
* Quasi-easement must be in **use by the common owner** at the date of the transfer or lease of the dominant land
98
The rule in **Wheeldon v Burrows**: Meaning
* An easement will be implied where an owner (A) of a plot of land sells or leases some of their land to an owner or tenant.
* New owner or tenant will impliedly acquire easements all those rights which A had previously exercised over the land it retain the benefit of the land it has just sold/leased to the new owner/tenant.
* Prior to the sale/lease, these rights are enjoyed by A as "quasi-easement",
* They were not "proper" easements, as a person cannot have an easement over their land
99
Can a person have an easement over own land?
No
* Cannont have a **proper easement**
* Can only have a quasi easement
100
*Continuous* meaning in **Wheeldon v Burrows**
* The right need not have been enjoyed constant or incessant
* There must have been a *degree of permanence*
* The right must not have been transitory or intermittent
100
When can the ***Wheeldon v Burrows*** rule only operate?
* On a sale or lease of part
* When immediately prior to the transfer or lease there was
* **a common owner and occupier of the whole**
101
*Apparent* meaning in **Wheeldon v Burrows**
* Clue as to the existence of the right from careful existence.
* Evidence = a track or a drain cover.
102
"Necessary for the reasonable use of the land"
## Footnote
Wheeldon v Burrows
* Test is met if the **right enhances the land** in some way.
* Fairly easy test to satisfy.
* RIght must have been **in use by the common owner** at the date of transfer of the lease.
* Show to have been used in the recent past, expected to be used again in the near future
* = *Matter of Fact*
## Footnote
Less strict than the tests for easements implied by necessity and common intention
102
In practice how is **Wheeldon v Burrows** addressed in transfers?
* Commonly **expressly excluded** from the relevant transfer, contract or lease
103
Example of *"necessary for reasonable use of land"*
* Bought a farmhouse and D bought an adjoining field from the same seller.
* Two means of access
* Access had been used as *quasi-easement*
* D blocked access. C claimed easemenr implied under ***Wheeldon***
* Although ***Wheeldon*** tests wre met, the easement was not necessary as **other access was qually convenient.**
## Footnote
Wheeler v JJ Saunders
104
***Wheeldon v Burrows*** together with **LPA 1925, s 62**
Will **imply the grant of an easement** (where on has not been expressly granted), but not the reservation of an easement
105
Implied acquisition under **LPA 1925, s62**
* Method of implied acquisition is available where someon is claiming to have been **granted** impliedly.
* It is **not possible** for an easement to have been impliedly reserved.
* It will **only imply an easement into a coveyance**(ie a deed)
* It **will not imply an easement into a contract**
106
LPA 1925, s62 states:
"...a covyance of land includes all easements, rights and advantages enjoyed with that land"
**Coveyance means a transfer or lease of land by deed**
107
The ordinary effect of **LPA 1925, s62**
* Traditional interpretation is that it is a word saving provision
* Ensures that when someone buys freehold or leases land
* Buyer or tenant receives **benefit of all existing easements**
108
The upgrade effect of LPA 1925, s 62
* Has a wider effect due to the **"upgrade effect"**
* Brand new easeement can be implied into a document.
* = *upgrades* informal rights into a full legal easeement
## Footnote
Wright v Macadam
108
Wright v Macadam
## Footnote
Upgrade Method - implying easeements
* W was the tenant of part of a house owned by M
* During tenancy M gave W informal permission ot store coal in part of his shed, on retained land.
* M tried to charge W for use of shed, she claimed an easement
* Court found in facour of W said that **LPA 1925, s62** operated to imply the informal right to use the shed into the new lease as a full legal easement.
* **A right permissive at the date of grant may become a legal right upon the grant by force of general words**
109
Requirements for the upgrade effect
## Footnote
LPA 1925, s62
* Only applies where the right being claimed **would have been a grant** to the claimant
1) There must have been a **prior diversity of occupation** of the dominant and servient land.
2) An **informal permission of licence** must have been granted to the occupier of the donimant tenement to use the servient land in some way.
3) Must have been a **coveyance** (Ie *transfer by deed or legal lease)* of the dominant tenement
109
Prior to a conveyance, under **LPA 1925, s 62**, what is the informal rights?
* A licence only
* Only upgraded on conveyance
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Explanation of **Wright v Macadam**
## Footnote
LPA 1925, s 62
* The implied easeement is legal as only applies to deeeds, takes status from status of the document it is implied into.
* Operates in a situation where landhad been previously divided.
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Explanation of **P&S Platt v Crouch**
## Footnote
LPA 1925, s 62
* Requirement of prior diversity was thought to be a pre-requisite
* More recent cases have held the requirement of prior diveristy of occupation is not necessary where the right is **continuous and apparent.**
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