7. Easements Flashcards
What are the four essential characteristics of an easement?
- There must be a dominant and servient tenement
- Easement must benefit the dominant land, not just the owner/occupier personally.
- Dominant and servient land must be in separate ownership
- Right claimed must be capable of forming a subject matter of a grant + defined clearly.
- granted by someone w/ power to (freeholder/leaseholder).
- be an recognised form of easement.
What is the question to ask when considering whether something is capable of being an easement?
Does it make the dominant tenement a more attractive or convenient landholding
- must be something dominant owner takes POSITIVE steps to exercise.
- cannot impose a positive burden unto servient owner.
- only a limited/closed list of negative easements = valid.
- must not overburden the servient land
When will a right be considered too extensive to form a valid easement, and how is this assessed?
Where claimed easement = akin possessory right
Key test:
? is whether easement ‘substantially interferes’ w/ enjoyment of the servient land?
- must leave sufficient room for other uses.
- servient owner should retain possession + control of land where right is claimed - relative to entire plot of land, but simply claimed parcel (Moncrieff)
What are the few forms of negative easements that can be validly granted?
- right to (ie. structural) support - not have neighbour tear down existing structure.
- right to light
note that all of these need to be very clearly defined.
- Cannot simply be a general right ie. to light over your garden, need a defined aperture.
Why are negative easements generally not valid?
Restrictive covenants are meant to provide for these sorts of rights.
What type of easement will the law recognise by long use (prescription)?
Legal easement
- exercised without protest for min 20 years (same idea as in nuisance)
What are the four ways an easement can be implied by grant?
- Necessity
- Common intention
- Wheeldon v Burrows rule
- S.62 LPA 1925
What are the three ways an easement can be implied by reservation?
- Necessity
- Common intention
- Prescription - long use.
When does implied grant or reservation arise?
When the parties have not expressly created necessary easements as part of the conveyance
When will an easement be implied by necessity?
Where a parcel of land is landlocked, a right of way over servient land will be implied in order to access the dominant parcel.
- very stringent test.
- not be implied if there is an alternative ie. access point, even if much more inconvenient.
- common for rights of away/support
When will an easement be implied by common intent?
where it is not ‘strictly necessary’ (so fails stringent necessity test), but obvious that it was mutually intended to subsist.
What are the four requirements for an easement to be implied under the Wheeldon v Burrows rule?
Easement must:
- Quasi easement
- Would have been an easement were it not for the land being in full ownership of one person at the time. - Used immediately before transfer.
- Use was continuous and apparent
- Necessary for reasonable enjoyment of the land acquired
When will an easement be implied via the Wheeldon v Burrows rule?
where the land was previously under the same ownership, and landowner sells/transfers a portion of it.
- transfer is deemed to contained all rights OG owner enjoyed.
When will an easement be implied via s.62 of the LPA 1925?
function is to upgrade a licence granted to a tenant into an easement once land is sold OR lease is rented.
What are four conditions must be satisfied for an easement to be implied via s.62 of the LPA 1925?
- must be a land conveyance
- capable of being an easement
- no express exclusion of s.62 in transfer/sale.
