3. Easements Flashcards
(44 cards)
DEF: easement
Easement: a right attached to a piece of land that burdens another piece of land, can bind the land in scenario of a sale
DEF: License
Temporary permissions which can be withdrawn at any time, does not bind the land if it is sold, requires permission
First test for ascertaining whether an easement exists:
Is the right capable of being an easement? (Re ellenborough Park)
Re Ellenborough Park Criteria
- There must be a dominant and a servient tenement, (you must have two parcels of land, one of which has the benefit of the easement and the other of which has the burden of it
- An easement must ‘accommodate’ the dominant tenement
- the dominant and servient tenements must not be owned and occupied by the same person
- A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant
Easement must ‘accommodate’ the dominant tenement:
- Benefits dominant land at the date of the grant (not just the owner)
- Right connected with the use of the land
- Two pieces of land must be sufficiently close
Requirements for right to be capable of being granted by deed:
- Must be a capable grantor and grantee
- Three questions in Ellenborough Park
i. Rights cannot be expressed in language too wide or vague
ii. Rights cannot amount to joint occupation or substantially deprive owners of proprietorship / legal possession
iii. Rights must not involve expenditure by servient owner - Courts must have recognised this right in the past (as an easement)
Does the right to a view constitute an easement capable of being granted by deed?
No, courts will not recognise it
How are deeds created expressly?
If created in a deed / conveyance
How are implied easements created?
No deed, but a sale of part
How are easements by prescription created?
No deed, created by long use
DEF: Grant of an easement
Person selling land is granting an easement to the buyer
DEF: Reservation of an easement
Person selling the land is reserving (holding back) easements for themselves out of the land being sold
Sale of Part: which easements can the seller impliedly reserve?
- easements of strict necessity
- easements implied due to the common intention of the buyer and seller at the time of sale
Sale of part: which easements are impliedly granted by the seller?
- easements of strict necessity
- easements implied due to the common intention of the buyer and seller at the time of sale
- easements under the rule in Wheeldon v Burrows
- Easements created under s62 LPA 1925
Requirements for easements of strict necessity:
- landlocked parcel of land
- without this, land could not be used at all
(claim defeated if an alternate means of access, even if dangerous) - only if land is being used for same purpose as it was when necessity arose
Easements by common intention:
if the parties intend that the land is to be used in a particular way; then any easements that are required to enable it to be used in that way will be implied into the sale of part deed
- applies even if parties did not know something would be necessary when transfer occurred
- ie. Drains
The rule in Wheeldon v Burrows: reservation or grant of easement?
Can only apply to grants of easement
Wheeldon v Burrows: explain
Where a sale of part occurs and a buyer wants to acquire an implied easement over the retained land of the seller, where no express provision has been made, the buyer can do so if the right was:
1. continuous and apparent
2. necessary for reasonable enjoyment of the land and
3. being used as a ‘quasi-easement’ by seller for the benefit of the land being sold AT THE TIME OF THE SALE OF PART
When would Wheeldon v Burrows fail?
- if a seller (in a sale of part) forgets to expressly reserve rights over the land sold, they cannot invoke this rule because they are NOT THE BUYER
Easements under s62 LPA 1925
- imply words into a conveyance, enabling existing rights of a permanent nature (easements) to be passed automatically in conveyance of land without having to state so expressly
- may mean that person with a license over the land can transform this into an easement using a conveyance
Three requirements for a new easement to be created under s 62 LPA 1925
- Must be a conveyance (or ‘instrument’ - written document with the effect of creating or transferring a legal estate: mortgage or lease) BUT NOT CONTRACTS FOR SALE
- Prior to the conveyance of part, the ‘dominant land’ must have enjoyed the benefit of a license or permission capable of being an easement
- There was diversity of occupation at the time of the conveyance of part (not required if right is continuous and apparent eg. light)
- The right is capable of being an easement or profit (claimant need not demonstrate that the right is necessary for the reasonable use of the land
Does this license need to have been in use during conveyance to invoke s 62 LPA 1925.
No, as long as it was in use shortly before.
Does an easement by prescription require a sale of part?
No
If dominant land has been sold since the creation of the easement, what happens?
If dominant tenement is sold after the creation of the easement, the benefit of the easement will pass automatically to the new owner by virtue of s.62 LPA 1925.
