Chapter 6: Easements

Question 1

what is an easement?

Answer 1

Right to cross or use someone else’s land for a specific purpose.

Question 2

what is the purpose of easements?

Answer 2

prevent the land from being overburdened

Question 3

who are easements available to?

Answer 3

those who have a connection to the land

Question 4

What are the 2 steps to establish an easement?

Answer 4

Does the right qualify as an easement?

If it is a valid easement has it been validly created?

Question 5

what are the requirements from Re Ellenborough Park?

Answer 5

Must be dominant and servient tenement

An easement must accommodate the dominate tenement

Dominant and servant owners must be different people

The right claimed must be capable of forming the subject matter of a grant

Question 6

what is the dominant tenement?

Answer 6

a piece of land/ property which enjoys the benefit by some third party

Question 7

what is the servient land?

Answer 7

a piece of land which bears the burden (grants) of some third party right

Question 8

what does accommodate the dominant tenement mean?

Answer 8

the right claimed must benefit the land itself not just the owner personally.

does the right increase the value of the land or its saleability?

Question 9

what does accommodate mean from case law?

Answer 9

easement must not depend on specific characteristics or identity of the owner

close proximity

not purely recreational

Question 10

what easement is granted to a tenant?

Answer 10

Tenant can have an easement over a landlords property to reach their front door

Question 11

what are the 3 stages to determine if is a right is capable of forming the subject matter of a grant

Answer 11

Easement must be defined clearly and free from ambiguity

Must be a grantor and grantee

Must be like existing easements (no new type)

Question 12

What is the question to determine if an easement is clear?

Answer 12

clear enough to be described a deed?

is it definable with specific words?

can you distinct it from other land?

Question 13

who is the grantor/ grantee

Answer 13

grantor must have the power to grant

grantee must be suitably defined (not a wide class of people)

Question 14

what are the 3 criteria to consider if a right is like existing easements?

Answer 14

Novel rights

Must not be too extensive

Must not be a positive burden on the servient owner

Question 15

what will the court consider with new easements?

Answer 15

positive/ negative actions

Level interference with servient land

is there an alternative way? agreement/ restrictive covenant

Question 16

what will the court not grant?

Answer 16

any new negative easements - a right enjoyed without any requirement of the dominant owner e.g right of support

Question 17

what is a positive easement?

Answer 17

requires action from the dominant owner to exercise the right e.g walking / driving.

Question 18

what are common issues that arise when determining if a right is too extensive?

Answer 18

parking / storage

Question 19

when will an easement for parking/ storage be granted?

Answer 19

dominant owner does not store too much or completely deprive the landowner of sufficient possession/ control of the servient land

the owner still has reasonable enjoyment/ use

Question 20

what must there NOT be on the servient owner to grant an easement

Answer 20

no positive burden

must not be obliged to do anything/ spend money/ enter into a contract with a third party.

Question 21

how can easements be created?

Answer 21

Express
Implied
Prescription
Statute

Question 22

what does reserve/ reservation mean?

Answer 22

protect a right do to something (so the new owner cannot stop this right)

original owner reserves a right to continue to access over the land they are selling after it is sold.

Question 23

what ways can a grant be implied?

Answer 23

By necessity
By common intention
Wheeldon V Burrows
Operation of S62 LPA 1925

Question 24

what is an implied grant by necessity?

Answer 24

The land would be landlocked (completely inaccessible/ unusable) without an easement = easement is necessary to use the land.

Question 25

what is an implied grant by common intention?

Answer 25

Commonly intended between the parties for use of the land. e.g shared garden path

Question 26

when does the grant of an easement under the rule in Wheeldon v burrows apply?

Answer 26

To the GRANT of new easements (not reservation) only applies where a party is selling part of their own land and when they owned the land they exercised the same right

Question 27

what is a quasi-easement?

Answer 27

Use of land which would have become an easement had the land not been owned by one person. (How an owner used the land before it was sold)

Question 28

what is the criteria of Wheeldon v burrows?

Answer 28

Quasi-easement The right was in use immediately before the transfer of land The right must be continuous and apparent (obvious) The right is necessary for reasonable enjoyment of the land (plainly visible and necessary)

Question 29

how is an easement granted under s62 LPA 1925?

Answer 29

The right conferred to a tenant by a landlord is upgraded to an easement when the land is sold or lease renewed (new legal deed). "word saving"

Question 30

what is the criteria for s62 LPA to apply?

Answer 30

conveyance of land (deed) capable of being an easement (Re Ellenborough) Transfer must not express any contrary intention from the parties 2 pieces of land separate ownership continuous and apparent (obvious) - once a month is ok

Question 31

what are the 2 types of implied reservation?

Answer 31

Reservation by necessity Reservation by common intention

Question 32

what is the principle of non derogation from grant?

Answer 32

cannot grant something and then hold back rights that would make the grant useful

Question 33

when would reservation by necessity apply?

Answer 33

the land landlocked/ completely in accessible without the right e.g right of support/ right of way

Question 34

when would reservation by common intention apply?

Answer 34

Commonly intended between the parties for that use of the land but not included in the legal deed

Question 35

how is a grant of easement by prescription acquired?

Answer 35

acquired by ‘long use’

Question 36

what are the conditions for without interruption for 20 years?

Answer 36

‘As of right’ Without force (no objections) Without secrecy Without permission (no reliance on permission/ payment of a fee) Must be by a freehold owner against another freehold owner Use must be continuous (once a month sufficient)