Easements Flashcards
What is an easement?
Easement – is a proprietary right to use land which belongs to someone else
- The use is more limited than an exclusive right to occupy or use
- The land which is benefited by the easement is the dominant tenement
- Person who grants the easement is the grantor and their land which is burdened is the servient tenement
Rights of way, drainage, storage, parking on neighbouring land
Legal easements?
- An easement is capable of being a legal interest in land if the duration of the right is equivalent to one of the two estates.
- Example – a right away granted when part of freehold land I sold will be granted forever
- Example- a right of drainage granted in a 5-year lease will be granted for that term of that lease.
Equitable easement?
- If not as above – then only equitable
Negative easements?
- A right of light is enjoyed from holder’s land and simply requires the servient landowner to refrain from blocking the light to the dominant land.
What is NOT an easement?
Quasi-easements
- When landowners use for example a path on their own land that subsequently gets divided
Public rights
- Right by its nature is exercise by general public
License
- A license is not a proprietary right in land but its similar
Profits a prendre
- An easement does not confer on holder the right to take anything such as produce animals’ fish or minerals from the land
Express creation?
- Most easements are expressly created – commonly arise when land is sold or leased
Implied creation?
Prescription
- May also arise by prescription or long use
- At least 20 years
- Easements acquired by prescription are legal easements
- Continuous user - as a right (without force, without secrecy and without permission)
Easement requirements?
- Re Ellenborough – 4 essential characteristics
- There must be a dominant and servient tenement
o Must be 2 identifiable pieces of land - The right must accommodate the dominant tenement
o Provide a benefit to the land itself - There must be diversity of ownership
o Between the dominant and servient land - The right must lie in grant
o Granted by capable grantor
o Capable of reasonably exact description
o Judicially recognised
Second requirement of easements?
Second – right must not be prevent from being an easement by presence of one of the disqualifying factors,
- Exercise of the right must not amount to exclusive possession of servient tenement
- Exercise of right by dominant owner must not involve additional expenditure by servient owner
- Exercise of the right must not depend on permission being given by servient owner
- Two tests for what amounts as exclusive possession
- Ouster principle – if left with no reasonable use of land – then will be too dominant
- Possession and control test – whether servient owner retains ultimate possession and control of the servient land
Third easement requirement?
- By complying with statutory formalities for an express grant or reservation
- By one of the recognised methods of implied acquisition
- By prescription which is long use
What is express acquisition?
3 ways
- Complying with statutory formalities for express grant or reservation
- By one of the recognise methods of implied acquisition
- By prescription
Express creation
- Most are created expressly
Formalities
- Must be created by deed – so much comply with those requirements
- Where servient land is registered the easement must be substantially registered at land registry to be legal
Express equitable easements: formalities
- Less formally created
- No substantial registration needed
Failed legal easement may be equitable
What is implied acquisition?
4 methods of impliedly acquired
- Necessity
- Common intention of parties
- Rule in Wheeldon v burrows
- LPA 125 s62
Neccessity rule - impled easements?
- Very narrow scope
- Where its existence is essential in order that any use of dominant tenement can be made.
- Like a landlocked land without a right of way.
- WILL NOT APPLY IF TEHRE IS AN ALTERNATIVE EVEN IF ITS DIFFIUCLT
Common intention - Implied easements?
- Narrow scope
- Where land has been sold. Bought for a particular purpose and that particular purpose cannot be fulfilled without easement sought.
- Parties must have a specific intention – a general intention will not be enough
- Where it’s essential to common purpose.
Implied aquation under the rule in Wheeldon v Burrows?
It is not possible to have an easement been impliedly RESERVED by the rule in Wheeldon v burrows
The new owner or tenant will impliedly acquire as easements all those rights which had previously been exercised over the land it retains.
o Immediately prior to transfer – there was a common owner and occupier
o Any quasi-easements that existed at time of division can become full easement – provided
o The right must have been continuous and apparent – so some degree of permanence and some clue, evidence on the land that it exists.
o Must be necessary of reasonable use of land – so if right enhances the land
o Use by the common owner at the date of the transfer of the lease
