Easements Flashcards
Legal Easements
Must be granted for a period of time equal to a freehold or leasehold (forever or for a certain term of years absolute).
Equitable Easements
An easement granted for an uncertain period of time.
Capability Rules
Re Ellensborough Park:
(1) Must be an identifiable dominant and servient tenement;
(2) The dominant tenement itself (not the owner) must be benefitted by the easement, meaning some value or amenity to the land is added + land sufficiently proximate to each other;
(3) Must be owned by two different people;
(4) Must lie in grant (e.g grantee has title and capacity + judicially recognised + capable of exact description).
Disqualifying Factors
(1) Easement amounts to exclusive possession of the servient tenement (does servient owner retain ultimate possession & control);
(2) Exercise of right must not depend on permission from servient owner;
(3) Must not necessitate unavoidable additional expenditure (dominant owner responsible for maintenance req to fully enjoy easement, right to supply hot water therefore not an easement).
Express Legal Creation
easement expressly set out in transfer deed/legal lease.
Must comply with formalities for deed (LPMPA 1981, s 2) = clear as deed on face of it, signed by grantor, witnessed/attested and dated.
Must be registered against the title of the dominant tenement.
If fails on formalities as legal easement, may be recognised as equitable estate contract if s.2 LPMPA 1989 satisfied (in writing, incorporating all terms and signed by both parties).
Implied Creation by Necessity
applies to grants and reservations
applies only to land which would otherwise be landlocked. Even if there is another method of accessing the land which is difficult or inconvenient, still would not apply. However, has seemed to loosen up recently and might include implying a right of way for a vehicle where there is right of way on foot.
Implied Creation by Common Intention
applies to grants and reservations but hard to prove for reservations.
Easement will be legal or equitable depending on the document it is implied into.
Where both parties to the transaction have a definite and particular purpose for which the land is sold and the easement is necessary to carry out that purpose on the land (e.g selling plot with planning permission).
Might be included where necessary for enjoyment of another easement (e.g right of way to access right to park).
Implied Creation by Rule in Wheeldon v Burrows
GRANTS ONLY.
Where the easement is continuous and apparent on a reasonably careful inspection of the land, all quasi-easements exercised at the time of conveyance (exercised reasonably recently or in foreseeable future),that are necessary for the reasonable enjoyment of the land will pass with the land.
Can exclude this in contract.
Implied by Rule in s.62 LPA 1925
Applies only to GRANTS and LEGAL easements.
Under s.62, burden of easements, quasi-easements and informal rights pass with the land.
Must be either prior diversity of occupation OR use is continuous and apparent on a reasonably careful inspection of the land.
By Prescription
Where use for 20+ years continuously (period of 1 year plus constitutes an interruption) and where use is without force, permission or secrecy. Creates a legal easement only.
Enforcement - Express Legal Easements
Burden always passes to new servient owner because the easement has to be registered to be enforceable.
Enforcement - Implied Legal Easements
Burden passes to new servient owner as an overriding interest under Sch 3 LPA if:
(a) the new servient owner had actual knowledge of the easement;
(b) easement was obvious on reasonably careful inspection of the land;
(c) easement in use in the last year.
Enforcement - Equitable Easements (express and implied)
Enforceable against new servient owner only if a notice is entered on the Land Register (registered land) or a charge is entered on the Land Charges Register (unregistered land).
Volunteers will always be bound however.
Remedies for Breach
prohibitory or mandatory injunction/ damages
