Easements Flashcards
(23 cards)
what are easements
goverened- Law of Property Act 1925 and the land registration act 2002
rights attached to land which can run with the land and give the owner of one piece of land a right over another
under sc 1(2) is a legal interest so proprietary in nature (so binds the entire world)
e.g right of way
3 things to prove for a valid easement
- is the right claimed capable of being an easement
- has it been created/acquired as an easement
- can it be enforced against the defendant
- is the right capable of being an easement? (questions about whether something can amount to an easement)
Re ellenborough Park 1956- owners of park sold part to developers, along with land granted builders a right to enjoyement of the rest of the land, developers sell house on land to another, new owners applied for these easements to be formally recognised as easements, main issue was whether the original deal automatically created an easement over the land
-created 4 elements to be capable of being an easement
1. there must be a dominant and serviant tenement
2. the easment must accomodate the dominant land
3. the dominant and servient owners must be seperate persons
4. the right claimed must be capable of forming sucject matter of a grant
a. there must be a dominant and servient tenement
-must be 2 plots of land
-dominant- has the benefit of the right
servient- burdened by the right
b. the right must accommodate the dominant tenement (land not owner)
- this must be connected with normal enjoyement of the land but does not need to increase the monetary value of it
-law commission- must benefit the land not the owner
c. the DT and ST must be different persons
- you cant have an easement over your own land
-a tenenat can have an easement over adjoining land owned by the landlord (e.g access to corridors in flats)
-quasi easement- when selling your land, s62 LPA says the quasi easement will be transferred into an easement as she was using it on her own land before like an easement
d. the right claimed must be capable of forming the subject matter of a grant
this is divided into 4 points-
-there must be a capable grantor (owner to grant to DT)
-there must be capable grantee (owner to grant to ST)
-there must be certainty of decsription (clear to subsequent owners what the easement encompasses)
-Green v ashco horticulural 1966- right to park van on Ds land, always moved van when asked to by owner so only used DT when owner allowed, use of land was based on temporary permission so not an easement (relies on consent)
-international Tea stores v Hobbs 1903- clear on what the limited times they could used the DT so easement
- cant claim a right to a view as not certain enough- Aldred case 1610
-the right must be within the general nature of rights capable of existing as easements
-should not be positive obligations- Phipps v Pears 1964 (unless for fences)
-Regency VIllas v diamon resorts 2018- R owner propety which was given rights to use leisure facilities, could amount easement aslong as satisfys Re Ellenborough park
- negative easements are prohibited- phipps v Pears 1964
parking/storage cases-
-sometimes a use of land for storage can look like possession and control- not an easement
-copeland v greenhalf 1952- a right to store cars on land is not capable of being an easement as it amounts to a claim to be joint users of the land, as easements cant be of excessive use of a ST
-grigsby v melville 1972- storage in a basement is not an easement of unlimited storage
-wright v Macadam 1949- the right to store coal in a coalshed could amount to an easement, right to storage is capable as it does not hinder the overall use and enjoyment of the land
-contrasted Newman v Jones 1982- a right to park a car in a defined area might be capable to be an easement
controversy with parking/ storage cases
-courts have struggles to find an appropriate test to apply in instances where there is a fine line between a right to use the ST land and possession/control of it
-london and blenheim ltd v Ladboke retail Parks ltd 1992- true test probably whether the ST owner is left without any reasonabe use of their land- if so then cant be an easement
-test confirmed in batchelor v marlow 2003
- Moncreiff v jamieson 2007 (scottish case so only persuasive)- the test should be whether the ST owner retains possession and control over their land- a lower standard, hasnt been followed in a significant way in england and wales
-not determines which test to follow
profits a prendre (dont need to know much about)
-a profit to take
- profit- rights to enter on the land of another and take the profits of it
-may include- taking timber, fruiy, shoot, fish, graze sheep
-profits must exist over specific ST land that is burdened by it
-does not need to be a DT and can exist ‘in gross’ as an independent right (personal to owner of the profit)
-if appurtenant to land (attached to land) will function in the same way as an easmenet- s1(2)(a) LPA
- has it been created/acquired as an easement?
Methods of creation/acquisition-
-expressly created
-implied created/ reservation
-implied creation and some form of tranfer of land
-prescription
a. expressly create
-can be express legal or equitable easement
legal-
-must be created by deed-s1 LPA conditions for a valid deed
-must fulfill the conditions under s1(2) LPA (must be attached to a fee simple or terms of years)
-express legal easements are a registrable disposition under s27(2) land registration act 2002- one of the formalities it must be registered on the land register- s32 LRA 2002 (if looking at registered land)
-automatically binding where the ST land remains unregistered s1(2) LPA 1925
equitable-
- will be in writing through contract or estoppel (made a promise and would be unconsionable to break)- (not by deed)
-best practise to protect them- notice on the land charges register
- ony effects contracting parties/ person estopped and person who acquires ST who is not giving considertaion (inherited/gifted) of registered land
-for unregistered land bona fide pruchasers (buyers in good faith) who do not have notice are not bound (so binds eveyone except equitys darling)
b. implied easements
- first question- is the easement claimed a grant or a reservation?
-grant- your giving something, if easement is to be implied for the benefit of the land that has been sold or leased - you have a right over my land
-reservation- claimed for benefit of the land that was retained by the seller- i have a right over your land (can only happen through necessity or common intention)
types of implied easements for reservation
necessity-
-necessary to use the land- otherwise landlocked
-DT needs acess across ST land to access property from main land
-will be implied into sale or lease
common intention-
-necessary for the use and enjoyment of the land in a way contemplated by the parties
-Pwllback colliery co ltd v Woodman 1915- essential for this purpose that that the parties intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner
-wong v Beaumont 1965- in lease conditions for health regulations, smells and not to cause a nuisance to the landlord or other occupiers, ventilation flu through the rest of the ST, easement could be implied so that he satisfys the conditions of his lease as there was a common intention as to the purpose for which it was needed
types of implied easements for grants
-things that arent easements that can transfer into easements
wheeldon v Burrows (for quasi easements)- no diversity of prior ownership
-can only be used by buyers or leasee to create an easement
3 requiements
1. requires a quasi-easement used for the benefit of the DT land which must be sold first
2. continuous and apparent use (obvious of use and continous)
3. necessary for reasonable enjoyment of the land (e.g easier access)
s62 LPA 1925- 5 steps
-this tranfers to a purchaser all rights, privileges and easements existing at the time of the covenyance (automatically implies transfer)
1. must be a conveyance (transfer of legal estate)
2. prior to conveyance, have been some diversity of ownership and occupation, but now doubted
wood v waddington 2015- s62 can tranfer quasi easement into easement aslong as continuous and apparent even in the absence of any prior diversity
3. s62 will only apply to rights which are known to law (capable of existing as easements Re ellenbourgh)
4. s62 wont apply if there is a contrary intention expressed in the deed
5. for s62 to operate, the right must appertain to land (only applied to rights being exercised at the time of conveyance)
goldberg v edwards 1950 and wright v Macadam 1949- said s62 can transfer licenses to easements (wasnt supposed to happen)
s62 or wheeldon v burrows?
- W v B only relates to easements whilst s62 relates to both easements, profits and other rights
- W v B operates where no diversity in occupation, s62 diversity is a requirement
- an easement that can pass under the rule in W v B are restricted by the 3 requirements in the rule, but no restrictions in s62 (but for quasi must be continous and apparent)
- W v B is apparently not limited to conveyance and an agreement/contract for a lease may be sufficient to create an easement in favour of a tenent even if there is no completed conveyance, s62 only operate for conveyance
-if diversity likely s62, but if not and continous could be either or both
c. prescription
Prescription is the acquisition of a right through long use or enjoyment; the law presumes that the right was lawfully granted
3 categories-
-common law
-lost modern grant
-prescription act 1832
if one of these apply it will be a legal easement
the use must be for atleast 20 years
use must be without
-force
-secrecy
-permission
categories
-if you can prove 20 years of use as a right (the 3 conditions) you can claim theres an easement under common law prescription
-however can be rebutted- by showing that the use has not been continuous since 1189 (cant use for house built after this date)
lost modern grant (to get round the rebutting problem)-
-was to declare that a grant was presumed to have been made expressly in the past but was now lost
-the presumption applies even if the servient owner can prove that no such grant was made
-only way to disprove is if the servient owner was incapable of making a grant (minor or lacked capacity)
prescription act 1832 (supposed to simplify 2 a both)-
-Tehidy Minerals- 1832 act doesnt replace the above 2 but adds to them
-creates problems due to different time periods
-20 years- as of right
-40 years- can only be defeated by written consent
prescription act cont-
-the next before action requirement- a claimant needs to bring an action in court if they are to establish an easement and needs to show a minimum of 20 years without interruption (unless interuption is upto a year)- sonly need to show 19 years and 1 day
- Can it be enforced against third parties?
original DT v original ST- yes a breach of contract
subsequent DT v OG ST- yes easement enforceable under s62 LPA 1925
original DT v subsuquent ST
Subsequent DT v subsequent ST
unregistered-
-subsequent DT- benefit automatically transfers to new (whether legal or equitable) via s62 (1) LPA 1925 (same for registered)
-subsequent ST- legal easements bind the whole world, equitable it must be regsitered as a class Diii charge on the land charge register (exceptions easements made by proprietary estoppel or where the subsequent purchaser is not equitys darling)- not the bona fide purchaser without notice
registered-
-subsequent DT-benefit automatically transfers to new (whether legal or equitable) via s62 (1) LPA 1925 (same for registered)
-subsequent ST- express legal easement must be registered on land register (if not becomes equitable), implied could be an overriding interest (overrides other interests and can be binding)- only new implied legal easements override, if came into force before LRA 2002 then must be registered against the ST to bind the new owner, unless created before 1st registration (so unregistered) so automatically binding, or not registered as impliedly created before (both cases will ve an overriding interest)
after the act- only legal easement if registered against title of ST, otherwise equitable
-equitable- overriding prior will still be overriding, otherwise must be protected by notice on land register
legal or equitable
legal-binding on the whole world
equitable- subject to conditions
express
-express legal- made by deed and registered (for registered land)
-automaticaly binding when unregistered s1(2) LPA
-express equitable- contract (only binding on parties and those without consideration for registered, for unregistered binding on anyone excpet bona fide pruchaser for valu without notice)
implied
-can all in theory be legal (implied into deed)
-implied equitable can only arise through necessity, intention or wheeldon v burrows if not be properly protected
-schedule 3 LRA can also be used to bind 3rd partys to an implied legal easement if the land is registered
-if unregistered- legal easement will bind automatically through s1(2) LPA
-equitable easements must be registered under s32 LRA 2002 to be protected (registered land) or s2 LCA 1972 for unregsitered land
schedule 3 LRA 2002 (for when land isnt registered)
3(1) a legal easment will be enforceable against a buyer of the servient land if they are
-obvious on a reasonably careful investigation of the land
-and within the actual knowledge of the buyer
or
-having been used within the year that ends on the date of the transfer of the ST to the buyer
s29 LRA 2002-
the Claimant cant sue the defendant on the easement if they are not a buyer (inhereted so dont have a right to sue)
ways to terminate an easement
-express release by deed (DT can execute a deed to execute)
-Abondment- Benn v Hardings 1993- 20 years no use and intention by the owner of the DT
-acquisition of dominant and servient lands by one person
-significant change of use
-extinguishement of implied easment through non-compliance with LRA 2002 sch3
can it be enforced against the defendant
legal- bind the whole world as under s1(2) LPA legal easements are legal interests
-servient DT automatically passes whether legal or equitable s62 (1) LPA 1925)
-consider below is subsequent ST
legal and registered- expressly made by deed and registered on land registry (binds the whole world)
- schedule 3 LRA can also be used to bind 3rd partys to an implied legal easement if the land is registered
-s3(1) a legal easement will be enforceable against a buyer if they are-
obvious on a reasonably careful investigation of the land and within the actual knowledge of the buyer
or having been used within the year that ends on the date of the tranfer of the ST to the buyer
-implied legal easement-could be an overriding interest (only new implied legal easements)- also need to consider when it came into force
legal and unregistered- automatically binding s1(2) LPA 1925
equitable and registered- protect with notice on land register s32 LRA 2002- binds contracting parties/ persons acquired the ST who have not given valuable consideration
equitable and unregistered- protect with class Diii land charge (unless made by estoppel)- binds everyone except bona fide purchase who has no notice
implied easement- can be legal (easement is implied into the deed transferring the DT parcel of land)
-can be equitable arising through necessity, intention or wheeldon v Burrows, when nor properly protected
section 2 LRA 2002- claimant cannot sue the defendant on the easement if they are non buyers (e.g inheret and gifts)
buyer or mortgagee of registered land who gives “valuable consideration” for their interest will take the land free from any pre-existing rights unless those rights are:
a, in any case if the interest
i) is a registered charge or the subject of a notice in the register
ii) falls within any of the paragraphs of schedule 3 or
iii) appears from the register to be excepted from the effect of registration
