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Land Law > Easements > Flashcards

Easements Flashcards

1
Q

When is an easement capable of being a legal interest?

A

Duration is equivalent to one of the two legal estates

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2
Q

What is an easement?

A

Proprietary right to use land belonging to someone else

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3
Q

What are positive and negative easements?

A

Positive – allows holder to use servient land in a particular way
Negative – right enjoyed from the holder’s land

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4
Q

What are grants and reservations?

A

Grant: Landowner sells/leases part of land and gives buyer/tenant easement over retained land.
Reservation: Landowner sells/leases part and retains right over that land

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5
Q

How may easements arise?

A
  • express
  • implied
  • prescription
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6
Q

What type of easement is an easement that has arisen by prescription?

A

Legal easement

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7
Q

What are the requirements for prescription?

A
  1. exercised reasonably regularly
  2. Used without force
  3. Used without secrecy
  4. Used without permission
  5. Uninterrupted use for 20 year period
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8
Q

What does interruption mean in the context of prescription?

A

No use for 1 year or more

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9
Q

Can a tenant obtain a prescriptive easement?

A

No must be between two freeholders

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10
Q

How do you determine whether a right is an easement or just a licence?

A
  1. Ellenborough park test
  2. No disqualifying factors
  3. Acquired as an easement
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11
Q

What is the Ellenborough park test?

A
  1. Must be dominant and servient tenement
  2. Right must accommodate the dominant tenement
  3. Must be diversity of ownership
  4. Right must ‘lie in grant’
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12
Q

What does ‘the right must lie in grant’ mean?

A
  • Granted by a capable grantor to a capable grantee
  • Capable of reasonably exact description
  • Judicially recognisable
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13
Q

What are the disqualifying factors for an easement?

A
  • no exclusive possession
  • no additional expenditure
  • no permission
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14
Q

What is the key principle for exclusive possession and how should it be applied?

A

Ouster principle
If servient owner able to anything with land except interfere with rights, likely not disqulaified

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15
Q

What are the ways in which a right can be acquired as an easement?

A
  • Complies with statutory formalities for express grant/reservation
  • Recognised method of implied acquisition
  • Prescription
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16
Q

If an easement is not forever or a set period of time, what can it only be?

A

Equitable interest

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17
Q

What are the formalities for an express legal easement?

A
  • created by deed
  • clear on face intended to be deed
  • validly executed
  • delivered
    Where servient land registered - substantive registration
18
Q

What are the formalities for an express equitable easement?

A
  • in writing
  • signed by grantor
19
Q

Is substantive registration needed for an equitable easement?

A

No

20
Q

What is the consequence if an easement has an equivolent term to the freehold/leasehold estate but was not correctly created?

A

Estate contract i.e. enforceable contract to create a legal easement

21
Q

What are the formalities for a failed legal easement to be an estate contract?

A
  • in writing
  • contain all expressly agreed terms
  • signed by both
22
Q

Where an easement is implied into a lease, when will it end?

A

when lease ends

23
Q

Where an easement is implied into a transfer deed, when will it end?

A

Lasts along with freehold

24
Q

What type of easement is created when it is implied into a transfer deed or lease?

A

Implied legal easement

25
Q

What type of easement is created when it is implied into a contract or equitable lease?

A

Implied equitable easement

26
Q

What are the methods of implied acquisition of an easement?

A
  • necessity
  • common intention
  • rule in Wheeldon v Burrows
  • s62 LPA
27
Q

When will an easement be implied out of necessity?

A

rights of way where land would otherwise be landlocked

28
Q

When may an implied easement out of necessity fail?

A
  • alternate access route
  • right of drainage/sewerage/electricity
  • possible for third party to grant
29
Q

What are the requirements for an easement to be implied due to the parties common intention?

A
  1. Land sold/leased for particular purpose
  2. Purpose known to both parties
  3. Easement essential to achieve common purpose
30
Q

What are the requirements for the rule in Wheeldon v Burrows?

A
  1. Grant
  2. Quasi easement
  3. Continuous and apparent
  4. Necessary for reasonable use
  5. In use by common owner at date fo transfer/lease
31
Q

Why was there held to be no easement under Wheeldon v Burrows in Wheeler v Saunders?

A

There was another equally convenient access route

32
Q

What are the requirements for s62 LPA?

A
  1. Grant
  2. Prior diversity of occupation (or no diversity but continuous and apparent)
  3. Informal permission or licence
  4. Conveyance
33
Q

Will the benefit of an easement pass when the dominant land changes hands?

A

Yes

34
Q

Is an express legal easement enforceable for registered land and why?

A

Yes always enforceable as it must be substantively registered

35
Q

How is an express legal easement enforceable for unregistered land?

A

Overriding interest on first registration

36
Q

How is an implied legal easement enforceable for registered land?

A

Will be an overriding interest provided that
* Within actual knowledge of new owner or
* Obvious on reasonably careful inspection or
* Exercised within a year before transfer

37
Q

How is an implied legal easement enforceable for unregistered land?

A

Overriding interest on first registration

38
Q

How is an express/implied equitable easement enforceable for registered land?

A
  • must be protected by notice on charges register to bind purchaser for valuable consideration
  • otherwise will still bind gifted/inherited
39
Q

How is an express/implied equitable easement enforceable for unregistered land?

A
  • must be protected by D(iii) Land Charge to bind purchaser for valuable consideration
  • otherwise will still bind gifted/inherited
40
Q

What are the remedies for easements?

A
  • Prohibitory injunction to prevent interference with enjoyment
  • Damages in lieu of injunction or in addition
  • Mandatory injunction to remove obstruction

Land Law (9 decks)

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