Easements Flashcards
(26 cards)
What is an easement in land law?
An easement is a proprietary right to use land belonging to someone else in a specific way. It is not an exclusive right to occupy but allows limited use (e.g., right of way, drainage, parking).
Who are the parties to an easement and what land do they own?
The grantee benefits from the easement and owns the dominant tenement; the grantor bears the burden and owns the servient tenement.
What is the difference between legal and equitable easements?
Legal easements must be granted for a term equivalent to a freehold or leasehold estate. If granted for an uncertain period or not properly formalised, the easement is equitable.
What are positive and negative easements?
Positive easements allow use of servient land (e.g., right of way). Negative easements prevent actions on servient land (e.g., right to light, air, support).
What rights are not easements?
Quasi-easements, public rights, licences, profits a prendre, and restrictive covenants are different from easements.
What is the difference between a grant and a reservation of an easement?
A grant gives an easement to a buyer/tenant. A reservation retains a right for the seller/landlord over land sold. Reservations are strictly construed
What are the four characteristics of an easement per Re Ellenborough Park?
There must be a dominant and servient tenement
The right must accommodate the dominant tenement
There must be diversity of ownership
The right must lie in grant
What does it mean for a right to accommodate the dominant tenement?
The right must benefit the land itself (not just the owner), enhance its value, convenience, or use
What happens if the dominant and servient tenement come into common ownership?
The easement is extinguished
What does it mean for a right to lie in grant?
The right must be capable of being granted by deed, clearly defined, and judicially recognised (e.g., parking
What are the three disqualifying factors that prevent a right from being an easement?
Exclusive possession by the dominant owner
Requirement for expenditure by the servient owner
Right exercised with permission
What are the tests for exclusive possession?
Batchelor v Marlow: Ouster principle — does the servient owner retain any reasonable use?
Moncrieff v Jamieson: Possession and control — does the servient owner retain ultimate control?
Can an easement require expenditure by the servient owner?
No. Easements must not impose a positive obligation. Dominant owner must carry out any necessary maintenance
Why is permission a disqualifying factor for easements?
A right exercised by permission (rather than as of right) is a licence, not an easement
How are express legal easements created?
By deed
For an interest equivalent to freehold/leasehold
Registered
What happens if formalities for an express legal easement are not met?
It may be recognised as an equitable easement if it complies with LP(MP)A 1989, s 2 or LPA 1925, s 53(1)(a).
What are the four methods of implied acquisition?
Necessity
Common intention
Rule in Wheeldon v Burrows
LPA 1925, s 62
When is an easement implied by necessity?
Where access to land is impossible without the easement (landlocked land)
When is an easement implied by common intention?
Where land is sold/leased for a specific purpose and the easement is necessary to achieve it
What is the rule in Wheeldon v Burrows?
Quasi-easements will become legal easements on transfer of part if they are continuous/apparent, necessary for reasonable enjoyment, and used at the time of transfer.
What is the LPA 1925, s 62 ‘upgrade’ effect?
Converts informal permissions into legal easements on subsequent conveyance
How does the benefit of an easement pass to a new dominant owner?
Automatically passes with the land
When is an express legal easement enforceable against new servient owners?
Registered land: if substantively registered
Unregistered land: binds the world
How are implied legal easements enforced?
Registered land: overriding interest
Unregistered land: bind the world
