Easements

Question 1

What is an easement?

Answer 1

An easement is a right that is attached to one piece of land and imposes a corresponding burden on another piece of 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 if this might significantly reduce the amount of light enjoyed through the windows of a building that benefits from the right

Question 2

Essential characteristics of an easement

Answer 2

• There must be a dominant and a servient tenement that is to say 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

Question 3

Essential characteristics of an easement - The need for a dominant and servient tenement

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. Therefore you must own land. Therefore the need for a dominant and a servient tenement is to say that you cannot have an easement in gross that is without owning any land which is capable of benefiting from the right

Question 4

Essential characteristics of an easement - The easement must accommodate or benefit the dominant tenement

Answer 4

As well as having a dominant and a servient tenement you can see that the right enjoyed by the dominant tenement has to be one which you can say not only enhances the owner’s enjoyment of his land but also is sufficiently connected with that land.

Question 5

Essential characteristics of an easement - The dominant and servient tenements 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; you already have all the rights you need because you are the owner. However it is possible for one person to own an estate in both the dominant and the servient tenement. This will happen where a landlord grants a lease of part of his property to a tenant.

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

Essential characteristics of an easement - When does a right become too vague to constitute an easement?

Answer 7

A distinction between a right to a view and rights such as those of light, air and support. A right to a view imposed a burden on ‘a very large and indefinite area’. However, if you have a house with windows overlooking your neighbours’ land the law does recognise that you may have a right to the passage of light to the windows.

Question 8

Essential characteristics of an easement - When does a right amount to possession?

Answer 8

The question of the extent to which the owner of land is excluded from using the land himself. ‘The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant.’

Question 9

Essential characteristics of an easement - When is a right a ‘mere right of recreation’ and when is it capable of being an easement?

Answer 9

An easement can exist to use a golf course, swimming pool or a tennis court.

Question 10

The right to light

Answer 10

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 11

Methods of creation of easements - Acquisition of an easement by express grant or reservation

Answer 11

This is where the owners of two neighbouring pieces of land agree that one of them is to have an easement over the land of the other. They have clearly expressed their wish to create the easement and provided they follow the correct procedure we can say the easement has been expressly granted. Usually happens when a person sells part of the land he owns.

Question 12

Methods of creation of easements - Acquisition of easements by implied grant or reservations

Answer 12

Implied easements may be created without any formality on a sale of part. They are deemed legal easements as they are implied into the deed used to transfer the legal estate on the sale of part. The rules on implied easements provide that after a sale of part of his land a seller will have the right to exercise over the land sold to the buyer. Implied methods of creation of an easement only apply where a sale of part of the land has occurred. If it’s implied it cannot be registered.

Question 13

Methods of creation of easements - Acquisition of easements by implied grant or reservations - Easements of strict necessity

Answer 13

An easement of strict necessity arises where without it no use can be made of the land – only comes about with absolute necessity – you can’t use the land without it!

Question 14

Methods of creation of easements - Acquisition of easements by implied grant or reservations - Easements implied due to the common intention of the buyer and seller at the time of the sale

Answer 14

If the parties intend that the land is to be used in a particular way any easements that are required to enable it to be used in that way will be implied into the sale of part deed

Question 15

Methods of creation of easements - Acquisition of easements by implied grant or reservations - Easements created under the rule in Wheeldon v Burrows

Answer 15

Allowing a buyer on a sale of part to acquire an implied easement over the retained land of a seller where no express provision has been made. The buyer would get such an easement if the right was:
a) Continuous
b) Apparent
c) Necessary for the reasonable enjoyment of the land
d) Being used as a ‘quasi easement’ by the seller for the benefit of the part of the land being sold at the time of the sale of part – quasi easement = you treat it as an easement as you are using it yourself.
Continuous and apparent = required some feature to be present on the servient tenement which would be apparent on an inspection. The feature must be one that has a degree of permanence such as drains or a path

Question 16

Methods of creation of easements - Acquisition of an easement by prescription

Answer 16

In this situation there is no grant, either express or implied and there need not be a sale of part. The right has arisen by long user against the other plot of land starting after the sale of part. Presumed to be granted in a deed. Requirements = as of right, use by one freehold owner against another and use must be continuous.
Having established that if I purport to exercise a right over your land and you fail to take any steps to stop me I will after a period of time become entitled to a right and you now need to know what the period of time is.

Question 17

Methods of creation of easements - Acquisition of an easement by prescription - Common law

Answer 17

Defence through the court against a claim seeking to extinguish a prescriptive easement. Cannot be used as a course of action in its own right. Must show that it has been used for at least 20 years. This can be easily rebutted if they can show that the right did not exist all the way back to 1189 or that both the dominant and serving land had been owned by the same party.

Question 18

Methods of creation of easements - Acquisition of an easement by prescription - Lost modern grant

Answer 18

Where user had been made for 20 years it was assumed that there had been a deed granting the right but that the deed had been lost. Claim that you have enjoyed the right for more than 20 years. DOES NOT NEED TO IMMEDIATELY PREDATE THE APPLICATION ALLOWING FOR POSSIBLE INTERRUPTIONS OVER TIME. Usually hard to rebut.

Question 19

Methods of creation of easements - Acquisition of an easement by prescription - Prescription act 1832

Answer 19

Can only be used as a defence against an action being brought to end the right. Need to prove 20 years of continuous use. MUST of been used right before the claim.

Question 20

S. 62 - easement by implication

Answer 20

There has to be an existing privilege, there is diversity of occupation (dominant and servant, landlord and tenant), there is a conveyance (transfer of land). Has the effect of transforming the licence into a legal easement. Where the occupier of land has been permitted to undertake some activity on the land owned by another and the owner of the land then conveys the property to the person claiming the benefit of the right

Question 21

Prescription over view

Answer 21

A prescriptive right can only be created as between two freehold owners and cannot become an easement until there is a separate dominant and servient owner

Question 22

Enforceability - Dominant land sold

Answer 22

Where the dominant tenement is sold after creation of the easement the benefit of the easement will pass automatically to the new owner

Question 23

Enforceability - Servient land sold - Unregistered title

Answer 23

When land is conveyed under the unregistered system the legal estate passes immediately on completion of the transaction. If the conveyance is by deed and contains the grant of an easement the easement takes effect immediately as a legal easement. As a legal interest a legal easement binds the whole word irrespective of notice. An expressly created equitable easement must be registered as a Class D(iii) land charge before the date of completion of the sale, the easement will bind the purchaser.

Question 24

Enforceability - Servient land sold - Registered title

Answer 24

The express grant of an easement for an interest equivalent to a fee simple absolute in possession or a term of years absolute is, therefore, a disposition that has to be registered. Once it is registered, it will bind successive owners of the servient land. An equitable easement must be protected by a notice against the servient title in order to bind a buyer of the land, as it is an interest affecting a registered estate. - Cannot claim an overriding interest under Sch 3, para 2 of the 2002 Act as the exercise of an easement is a mere user of land and not actual occupation. - It will be an overriding interest under Sch 3, para 3 to the 2002 Act as long as either:
a) it would have been obvious on a reasonably careful inspection of the land; or (b) They actually knew about it; or
(c) It can be proved they exercised the right in the year prior to the sale to

Question 25

Maintain and repair

Answer 25

Once a right of way exists the servient owner is under no obligation to maintain or repair it. Similarily the dominant owner has no obligation to maintain or repair the right of way.

Question 26

How do express easements bind a buyer?

Answer 26

Express easements granted for a freehold period and created by deed are registrable dispositions so they need to be registered in order to bind the buyer.

Question 27

How do you create an implied easement?

Answer 27

They are only created on a sale of part

Question 28

Express easement - Different types

Answer 28

There are 2 types:
1) Ad hoc transaction
2) Transfer of land

Question 29

Express easement - Ad hoc transaction

Answer 29

E.g Tim grants Emily a right of way over Blackacre. This is where neighbours agree it will burden one and benefit the other

Question 30

Express easement - Transfer of land

Answer 30

E.g grants an easement benefitting the land transferred to you and burdening the land retained by her
E.g reserves an easement benefitting the land retained by her and burdening the land transferred by you

Question 31

Express easement - General

Answer 31

This is one that has been written down usually in a deed made at the time of the sale