Easements

Question 1

What is an easement?

Answer 1

A right over land. A positive easement is one that allows the owner of land to use the of another in a particular way - E.g a right of way. A negative easement is one that restricts the use of another person’s land in some way - E.g right to light which can prevent the other person erecting a building on his land

Question 2

Essential characteristics of an easement

Answer 2

1) There must be a dominant and a servient land
2) An easement must accommodate the dominant land
3) The dominant and servient lands must not be owned and occupied by the same person
4) Needs to be capable of forming the subject matter of a grant

Question 3

Essential characteristics of an easement - The need dominant and servient land

Answer 3

Land having the benefit of an easement is referred to as the dominant tenement. Land subject to an easement is known as the servient tenement.

Question 4

Essential characteristics of an easement - The easement must accommodate/benefit the dominant land

Answer 4

The right must be connected with the normal enjoyment of the property. Must enhance the owner’s enjoyment of the land and be sufficiently connected with it. Can’t just be personal enjoyment by that one person

Question 5

Essential characteristics of an easement - The dominant and servient land must not be both owned and occupied by the same person

Answer 5

You cannot give yourself a right of way over you own land

Question 6

Essential characteristics of an easement - The right must be capable of forming the subject matter of a grant

Answer 6

The right must be one capable of being granted by deed.

Question 7

The right to light

Answer 7

This is a recognised negative easement but there is no general right to light. A right to light must be via a defined aperture

Question 8

Methods of creation of easements

Answer 8

3 ways to create an easement:
1) Express grant or reservation
2) Implied grant or reservation on a sale of part
3) Prescription

Question 9

Express grant or reservation

Answer 9

Where the owners of two neighbouring pieces of land agree that one of them is to have an easement over the land of another e.g in a deed (deed of easement) for a freehold or leasehold period

Question 10

Implied grant or reservation on a sale of part

Answer 10

Easements can be created automatically on a sale of part or on the grant of a lease of part even though no express provision is made. They are deemed to be legal as they are implied into the transfer when part of the land is sold. There are different rules for sellers and buyers. It is common to exclude these using an exclusion clause

Question 11

Implied grant or reservation on a sale of part - Sellers

Answer 11

Two types:
1) Easements of strict necessity
2) Common intention easements
These will be implied reserved out of the land being sold for the benefit of the land the seller is retaining

Question 12

Implied grant or reservation on a sale of part - Buyers

Answer 12

4 Options:
1) Easements of strict necessity
2) Common intention easements
3) Easements under Wheeldon v Burrows
4) Easements under S. 62 LPA
Rights impliedly granted to the buyer for the benefit of the land being bought and over the land the seller is retaining

Question 13

Implied grant or reservation on a sale of part - Easements of strict necessity (buyer and seller)

Answer 13

These may be created where, without the right no use can be made of the land at all

Question 14

Implied grant or reservation on a sale of part - Easements of common intention (buyer and seller)

Answer 14

These may be created where it can be shown that the parties to the sale or lease of part intended the land to be used in a particular way, and easements are implied if they are needed to enable this to happen.

Question 15

Implied grant or reservation on a sale of part - Wheeldon v Burrows (Buyer)

Answer 15

The buyer of part of the seller’s land will get an implied easement over the land of the seller if the right is:
1) Continuous and apparent
2) Necessary for the reasonable enjoyment of land
3) Being used as a ‘quasi-easement’ by the seller for the benefit of the land being sold at the time of the sale

Question 16

Implied grant or reservation on a sale of part - Wheeldon v Burrows (Buyer) - Continuous and apparent

Answer 16

Right is apparent on inspection and has a degree of permanence e.g right of way may be apparent from the existence of a path

Question 17

Implied grant or reservation on a sale of part - Wheeldon v Burrows (Buyer) - Necessary for the reasonable enjoyment of land

Answer 17

Right claimed should facilitate the reasonable enjoyment of the property

Question 18

Implied grant or reservation on a sale of part - Wheeldon v Burrows (Buyer) - Quasi-easement

Answer 18

Right being used over part of a person’s land for the benefit of another part of that person’s land that would be an easement if the two parts of the land were in separate ownership

Question 19

Implied grant or reservation on a sale of part - S. 62 (Buyer)

Answer 19

Implies general words into a conveyance or transfer of land enabling rights that already exist at the time of the sale of part to be passed automatically to the buyer. Converts a licence into an easement

Question 20

Prescription

Answer 20

This occurs where a person exercises a right for a long time without anyone challenging them and, after a minimum of twenty years, the right becomes an easement

Question 21

Prescription - Types

Answer 21

1) Common Law prescription
2) Lost Modern Grant
3) Prescription Act 1832
Need to comply/fulfil the common law conditions first before you can argue one of the methods

Question 22

Prescription - Common Law Conditions

Answer 22

1) There needs to be a right
2) Prescriptive element - needs to have been enjoyed without force, without secrecy without permission for a long period of time (at least 20 years)
3) Continuous use but does not need to be constant- needs to have been exercised without interruption - do not need to establish daily use but must ensure that any gaps are short
If all three of these have been met the law presumes that the right was lawfully granted

Question 23

Prescription - Common Law Prescription

Answer 23

If it can be shown that the right has been used for 20 years, the courts will presume that it has been continuous from 1189. This is rarely used now as it is easily rebuttable if it can be shown that the right could only have arisen sometime after 1189 or that both the dominant and servient land had been owned by the same party at some point
This route cannot be used as a course of action in its own right can only be used against a claim seeking to extinguish a prescriptive easement.

Question 24

Prescription - Lost Modern Grant

Answer 24

If the use has been made for 20 years, it is assumed that, once upon a time, there must have been a deed granting the right, but the deed has been lost. The 20 year period does not need to immediately predate the application allowing for possible interruptions to use over time. Can only be rebutted by evidence that the owner did not have the power at the relevant time to grant the right

Question 25

Prescription - Prescription Act 1932

Answer 25

Continuous use for either 20 years or 40 years. The period needs to be directly before the application. If you have any break then you lose the right. Rarely used in practice.

Question 26

Prescription - Written Consent

Answer 26

Written consent from the landowner can defeat a claim for a prescriptive easement. This is because written consent can indicate that a license has been granted for the right, rather than an easement.

Question 27

Enforceability of easements - Dominant land is sold

Answer 27

The benefit of the easement passes automatically to the new owner

Question 28

Enforceability of easements - Servient land is sold

Answer 28

Where the easement is enforceable against the new owner depends on how the easement was created and whether it is legal or equitable.

Question 29

Enforceability of easements - Servient land is sold - Registered land, legal easement created by express grant

Answer 29

The easement must be registered. If the easement isn’t registered, then it will be equitable but equitable easements only bind a purchaser of registered land if they are protected by a notice on the servient title. So an unregistered easement will be unenforceable.

Question 30

Enforceability of easements - Servient land is sold - Legal easements which are implied or created by prescription

Answer 30

Overriding interests under Sch 3. paragraph 3. They will be binding on a new owner of the servient land if they would have been obvious on a reasonably careful inspection of the land, or the servient owner knew about them or the person claiming them can prove they exercised the right in the year prior to the sale

Question 31

Who has to maintain a right of way?

Answer 31

Once a right of way exists the servient owner and dominant owner have no obligation to maintain or repair. The obligation depends upon the terms of the grant or reservation and in the absence of this then neither has to.