Easements

Question 1

What is an easement?

Answer 1

A proprietary right to use land which belongs to somebody else.

Can only exist between two freehold owners.

Question 2

What is the dominant tenement?

Answer 2

The person who receives the benefit of the easement - the grantee

Question 3

What is the servient tenement?

Answer 3

The person who grants the easement and is burdened by the easement - the grantor.

Question 4

When is an easement a legal interest in land?

Answer 4

If it is equivalent to a freehold or a leasehold estate. If not - it can only be equitable.

Question 5

What are the only recognised negative easements at law?

Answer 5

A right to light - in relation to a defined aperture

A right to air

A right to support (from a wall)

Question 6

What are quasi easements?

Answer 6

Use of something (e.g. paths on your own land) that may become easements if the land were ever divided.

Question 7

What is a profit a prendre?

Answer 7

Confers a right to take something from the land.

Question 8

What is a restrictive covenant?

Answer 8

Restricts what can be done on the servient land.

Question 9

What is a grant?

Answer 9

Where a landowner sells or leases part of their land to a third party, and grants the third party an easement over the land they have retained.

Question 10

What is a reservation?

Answer 10

Where a landowner sells or leases part of their land to a third party, and reserves a right of way for themselves over the third parties land.

Question 11

Which of a grant or a reservation is more strictly construed, and why?

Answer 11

Reservation - as the person who enjoys the benefit of the easement had the express ability to set out what they wanted to retain.

Question 12

How are easements created?

Answer 12

• They can be made expressly
• Implied into documents.
• Or granted by prescription - ‘long use’.

Question 13

When can an easement be claimed by prescription?

Answer 13

If exercised for over 20 years.

Prescription will succeed under the Prescription Act 1832 if the use can prove uninterrupted enjoyment for the 20 year period.

No use for over one year = interruption.

Question 14

What is required for an easement to have been acquired by prescription?

Answer 14

• Continuous user - a ‘reasonably regular use’ by a freeholder or successive freehold owners against a freeholder.
• Who used the easement as a right - without force, without secrecy, and without permission.

Question 15

What is the three step process for establishing whether something is an easement?

Answer 15

1) Capability - Re Ellenborough Park

2) Disqualifying factors

3) Has it been acquired?

Question 16

What is the test from Re Ellenborough Park: four elements which must exist in order for something to be capable of being an easement?

Answer 16

There must be a dominant and servient tenement

The right must accomodate the dominant tenement (proximity)

There must be diversity of ownership

The right must lie in grant

Question 17

Step 2 of Re Ellenborough Park: What must you consider to judge whether an easement accommodates the dominant tenement?

Answer 17

Does the right benefit any owner of the land?

Does it cease to be of use once the dominant owner has parted with the land?

Does the right make the dominant land a better or more convenient property?

Does the right add value or amenity to the dominant land?

Question 18

What must you consider regarding step 2 of Re Ellenborough Park if an easement benefits a business which exists on the land?

Answer 18

Must consider whether the business is a necessary incident to the use of the land, or an unconnected business. If there is a connection between the land / business run from the land, a right that benefits the business will also benefit the land.

Question 19

What features must an easement have to make it capable of forming the subject matter of a deed (for point 4 of Re Ellenborough Park - the right must lie in grant)?

Answer 19

Granted by a capable grantor to a capable grantee

Capable of reasonably exact description

Judicially recognised

Question 20

Name some examples of rights which have been judicially recognised?

Answer 20

Right of way

Right of drainage and other rights through pipelines

Right of support

Right to use sporting and leisure facilities

Right to use land for storage / parking

Question 21

Name the three disqualifying factors which will make an easement ineligible to be an easement.

Answer 21

Exercise of the right must not amount to exclusive possession of the servient tenement

Must not involve additional, unavoidable expenditure by the servient owner

Cannot depend upon permission being given by servient owner.

Question 22

What are the two tests relevant for considering exclusive possession?

Answer 22

The ouster principle

The possession and control test

Question 23

What is the ouster principle?

Answer 23

Is there any reasonable use of the land remaining? This test is binding law.

Question 24

What is the possession and control test and how does it differ from the ouster principle?

Answer 24

Asks whether the person retained possession and control of the land - this test is much more flexible.

If you can do anything on the land except interfere with the right (here, the parking and storage), it probably won’t be disqualified.

Question 25

Who carries out repairs for an easement?

Answer 25

The dominant owner must be allowed onto servient land to do repairs at dominant owner's expense.

Question 26

When can an easement be capable of being legal?

Answer 26

If it is granted forever (e.g. freehold) or of a term equivalent to a leasehold. If it does not fit either of these, it can only ever be equitable.

Question 27

What formalities are required to create an express legal easement?

Answer 27

Deed and registration Deed - LPA 1925, s52, which must be compliant with LP(MP)A s1 (Labelled as a deed, signed by grantor and witnessed, dated). Registered at land registry.

Question 28

What formalities are required to create an equitable easement?

Answer 28

Made in writing and signed by the grantor No need to register it

Question 29

How might a court approach an easement which falls in the definition of legal easement but has not been created correctly?

Answer 29

Consider it an estate contract as long as it complies with the formalities for an estate contract under LP(MP)A 1989 s2 Made in writing signed by both parties Includes all expressly agreed terms.

Question 30

What are the four methods of implied acquisition?

Answer 30

* Necessity * Common intention of the parties * The rule in Wheeldon v Burrows * LPA 1925, s62

Question 31

When will an easement be implied by necessity?

Answer 31

If its existence is essential to show that any use of the dominant tenement can be made. Only example of this is a right of way to otherwise landlocked land. Method has a very narrow scope Can be grants or reservations

Question 32

When will an easement be implied by common intention?

Answer 32

* Where land has been sold / leased to another for a particular purpose, and the purpose cannot be fulfilled without the easement sought. * If it is necessary for the enjoyment of some expressly granted easement. * The purpose must be known to both parties, and must be essential to achieve the common purpose. * If it is a reservation, the burden of proof will be very heavy to show that the specific easement was mutually intended. Can be grants or reservations

Question 33

Which type of easements can the rule in Wheeldon v Burrows apply to?

Answer 33

Grants only - not reservations.

Question 34

What is the rule in Wheeldon v Burrows?

Answer 34

Quasi easements enjoyed by an owner will become easements if the owner sells or leases some of their land.

Question 35

What are the four requirements for the rule in Wheeldon v Burrows to apply?

Answer 35

* Right must have been enjoyed as a quasi-easement by the seller or the landlord before the land was divided * Must be continuous and apparent (some degree of permanence, and evidence on the land that it exists) * Must be necessary for the reasonably enjoyment of the dominant land (enhances the land in some way) * Quasi easement must be in use by the common owner at the time of transfer / lease of the dominant land.

Question 36

Which type of easements does the LPA 1925, s62 apply to?

Answer 36

Grants only and will only imply them into a conveyance e.g. a deed.

Question 37

What is the effect of LPA 1925, s62?

Answer 37

When someone buys freehold land or leases land, the buyer or tenant will receive the benefit of all existing easements which affect that land. Also triggers the upgrade effect, where it can turn informal rights into full legal easements.

Question 38

What three requirements must there be for the 'upgrade effect' of LPA s62?

Answer 38

* Prior diversity of occupation of the dominant and servient land. * An informal permission or licence must have been granted to the occupier of the dominant land to use the servient land * There must have been a conveyance of the dominant land.

Question 39

How have later cases reinterpreted the requirement for diversity of occupation under the LPA 1925 s62?

Answer 39

The requirement for prior diversity of occupation is not necessary where the right is continuous and apparent.

Question 40

What are the key difference between LPA 1925, s62 and the rule in Wheeldon v Burrows?

Answer 40

Using s62 is easier as there are fewer requirements to satisfy - no need to show that the right is necessary to the reasonable use of the land. S62 is limited to conveyances only - W v B can imply an easement into a contract.

Question 41

Give the two situations in which the LPA 1925, s62 can operate.

Answer 41

Where the land has been divided before the informal permission is given, and the permission becomes an easement when land is re-let or sold Where land is divided for the very first time by lease or sale of part if right is continuous or apparent.

Question 42

What happens to an easement when the dominant land changes hands?

Answer 42

It will always pass with the land - whether it is legal / equitable.

Question 43

Will an express legal easement on registered land be enforceable against servient land?

Answer 43

Yes always, as to be a legal easement it must be substantively registered.

Question 44

Will an express legal easement on unregistered land be enforceable against servient land?

Answer 44

Yes because 'legal interests bind the world'. Since LRA 2002, once land becomes registered, it will become an overriding interest and be noted on charges register.

Question 45

Will implied legal easements on registered land be enforceable against servient owner?

Answer 45

It will be an overriding interest provided that: -Easement is within the actual knowledge of the new owner - It is obvious on a reasonably careful inspection of servient land - It has been exercised with a year before the transfer of the servient land

Question 46

Will implied legal easements on unregistered land be enforceable against servient owner?

Answer 46

Yes - legal interests bind the world. On 1st registration, will become an overriding interest

Question 47

Will an express equitable easement on registered land be enforceable against servient owner?

Answer 47

It will be enforceable if it is protected by a notice in the charges register, to a new purchaser. Enforceable without a notice to a donee.

Question 48

Will an express equitable easement on unregistered land be enforceable against servient owner?

Answer 48

Must be protected in order to be enforceable to a new owner by Land Charge Donee will always be bound.

Question 49

What are the enforceability rules for implied equitable easements?

Answer 49

Exactly the same as for express equitable easements.

Question 50

What remedies are available for loss of an easement?

Answer 50

Prohibitory injunction Damages in lieu of injunction or in addition to it. Mandatory injunction to remove obstruction.

Question 51

If an easement is implied in via LPA s62, what is its status?

Answer 51

Legal - because S62 only operates to imply into a conveyance - so it must be a deed

Question 52

Write out a summary of the three stage process for easements, including as much as you can remember

Answer 52

Check against your notes