Creation and Priorities of Easements Flashcards
Key difference between creation of reservations and creation of grants.
There is a prima facie rule that reservations should be expressly created, for the presumption is that the grantor shall not derogate from his grant (Walby)
When will reservations be implied?
The easement must be necessary for the use of the land (Lighterage - “easements of necessity”) or necessary to enable the DTO to enjoy a right expressly granted/use the land for the purpose for which it was conveyed (Pwllbach - “easements of intended use”)
Wong
Since the lease specified that the DT (cellars) would be used as a restaurant, there was an easement of necessity to fix ducting to the ST for ventilation purposes, w/o which the restaurant could not function lawfully
Two conditions for easement of intended use.
Stafford – the DTO must show on the BoP that
(i) There was some common intention as to some definite and particular user (i.e. the facts are not reasonably consistent with any other explanation; Webb)
(ii) The easement is necessary to give effect to it.
4 ways to create implied grant.
(i) Necessity
(ii) Intended Use
(iii) Wheeldon v Burrows
(iv) S.62
5 conditions for Wheeldon v Burrows
- Continuous and Apparent.
- Necessary for reasonable and convenient enjoyment.
- Grantor is owner and occupier of the entirety.
- Exercised prior and up to the time of the transfer
- No contrary intention.
Ward (defining continuous and apparent)
A feature which would be seen on inspection and which is neither transitory nor intermittent
Millman (cf Ward)
While Ward suggested this requirement only applied to positive easements, the analysis in Millman indicates it will always be necessary (G&G/Garland support this, noting that Wheeldon effectively creates an easement where none had previously existed, and this must be justified by utilitarian considerations)
Millman (necessity)
the fact that the lane was significantly safer to use w/ the lay-by made the easement to use the lay-by “necessary for reasonable enjoyment” of the lane
Costagliola (time factor for Wheeldon)
It appears to be sufficient that the right has been exercised in the recent past and is expected to continue after the grant, for the right recognised had not been exercised for a ten-month period before sale
Give e.g.s of a case that fell afoul of the “no contrary intention” rule in Wheeldon, and another of a case that did not.
Squarey – the contract included a standard form term that would exclude a claimed right of way; the CoA held that this indicated the right was not intended to pass (despite it being a standard term)
Millman – the presence of an existing express right of way does not preclude the implication of a wider right of way under Wheeldon
What is the effect of S.62 of the LPA 1925?
Any right enjoyed with the property will blossom into an easement upon conveyance by means of an implied grant, even if it was originally not proprietary, exercised by permission only and thus precarious (e.g. Hobbs)
Five requirements for S.62.
- The right must be an easement known to the law (Wright)
- There must be conveyance of a legal estate.
- There must have been diversity of occupation (Kent).
- The advantage must be enjoyed with the land conveyed (Goldberg - the focus is on the nature of the permission and whether it was capable of being annexed to the conveyance).
Wood (S.62)
The focus of the requirement that the advantage must be “enjoyed with the land” is on how the advantage was actually used and whether it was apparently for the benefit of the land conveyed and a burden on the land retained
Common Law Prescription
Proof of use for 20 years is sufficient, but any evidence that the right could not possibly have existed in 1189 will be fatal to the claim
Lost Modern Grant
From 20 years’ use, the court would draw a fictional and irrebuttable (Dalton) presumption that a grant had been made and lost
Oakley
The only way to rebut this presumption of lost modern grant is by showing that the STO is legally incapable of granting an easement
Two requirements for prescription under PA
- Continuous and Substantial Use
2. Uninterrupted Use
Hollins
i. Continuous and Substantial Use – “the use must be enough to carry to the mind of a reasonable person in possession of the ST the fact that a continuous right to enjoyment is being exercised and ought to be resisted”
S.4 of the PA provides that an interruption will be disregarded unless acquiesced in or submitted to for a period of a year. When will acquiescence be found? (3 cases)
o Vigorous protest when the exercise of the right is interfered with (Davies) or active negotiations (Smith) make it unlikely that an interruption will be found.
o Dance – the two year delay in bringing a claim after the exercise of the right had been interfered with, combined w/ a failure to complain up till the time of seeking legal advice, proved fatal to the claim
A has discovered that B is attempting to acquire an easement of storage in his garage by prescription. Advise him.
Since B is attempting to prescribe a positive easement, A can interrupt his use by denying B entry.
Easements of light receive special treatment under the PA 1980. Discuss.
S.3 provides that easements of light arise after 20 years’ right, regardless of capacity of the parties, w/o requirement that user be as of right (but the right will be defeated by written consent or agreement.
Two universal requirements of prescription
- Sunningwell – it must appear as if C is exercising a legal right nec vi, nec clam, nec precario
- Sturges – Acquiescence by the STO lies at the heart of prescription
Redcar (nec vi)
If the use continues after the owner has protested, it is treated as vi; actual physical force is NOT needed
