Easements

Question 1

What is an easement?

Answer 1

A right for one landowner to make use of another parcel of land for the benefit of their own land, such as a right of way.

Easements can be used interchangeably with profits in certain contexts.

Question 2

What is a profit (profit a prendre)?

Answer 2

A right to go onto someone else’s land and remove something that exists naturally, such as fish, animals, or minerals.

Examples include rights to catch fish, graze animals, extract minerals, or hunt.

Question 3

What are the requirements for an easement to be capable of being legal?

Answer 3

It must be granted for an estate in fee simple absolute in possession or a term of years absolute.

An easement created for an uncertain duration is not legal.

Question 4

What is required to create a legal easement?

Answer 4

A deed is required, which must meet specific requirements set out in s 1 LPMPA 1989.

Legal easements can also be created without a deed under certain conditions.

Question 5

What is a servient tenement?

Answer 5

The land over which the easement is exercised (the burdened land).

This term is essential in understanding the relationship between the dominant and servient tenements.

Question 6

What is a dominant tenement?

Answer 6

The land that enjoys the right (the benefitted land).

This is the land that benefits from the easement.

Question 7

What does it mean to ‘grant’ an easement?

Answer 7

The landowner creates an easement in favor of the buyer.

This establishes a legal right for the buyer over the servient tenement.

Question 8

What does it mean to ‘reserve’ an easement?

Answer 8

The landowner creates an easement in favor of their own land when selling to a buyer.

This allows the seller to retain certain rights over the sold property.

Question 9

What are the four essential characteristics for a right to exist as an easement according to Evershed MR?

Answer 9

• There must be a dominant and a servient tenement
• The easement must accommodate the dominant tenement
• The dominant and servient tenements must not be both owned and occupied by the same person
• The easement must be capable of forming the subject matter of the grant

These criteria are fundamental for recognizing legal easements.

Question 10

Can an easement exist ‘in gross’?

Answer 10

No, an easement cannot exist ‘in gross’; it must be attached to a dominant tenement.

Attempts to create an easement without an identifiable dominant tenement will result in a license.

Question 11

What must the easement do to accommodate the dominant tenement?

Answer 11

It must be connected with the normal enjoyment of the dominant tenement.

This connection can be factual, as established in various court cases.

Question 12

What is the significance of the principle of diversity in easements?

Answer 12

The dominant and servient owners must be different people; an easement cannot exist over one’s own land.

This principle is satisfied in landlord-tenant situations.

Question 13

What is a quasi-easement?

Answer 13

Rights exercised by the sole owner of two separate properties over one of them, lacking diversity of ownership/occupation.

Quasi-easements can be converted to easements on a sale of part of the land.

Question 14

What does it mean for an easement to be capable of forming the subject matter of the grant?

Answer 14

An easement must be capable of precise definition and granted by deed.

This includes having a capable grantor and grantee.

Question 15

What is required for an easement to have a reasonably exact definition?

Answer 15

An easement must be clearly defined and not vague.

Examples include no general right to light without defined apertures.

Question 16

True or False: An easement can involve expenditure by the servient owner.

Answer 16

False.

An easement must not impose a positive obligation on the servient owner.

Question 17

What must an easement not amount to?

Answer 17

A claim to joint possession of the servient tenement.

This includes not excluding the grantor completely from possession.

Question 18

What was concluded about easements of parking in London and Blenheim Estates v Ladbroke Retail Parks?

Answer 18

An easement to park vehicles can exist if the servient land is sufficiently large.

The issue is one of degree regarding the reasonable use of the land.

Question 19

What is the relationship between easements and recreational purposes?

Answer 19

Easements can exist for recreational purposes, as established in cases like Re Ellenborough Park and Regency Villas Title Ltd v Diamond Resorts.

The courts recognize recreational activities as beneficial and support such easements.

Question 20

What was the criticism made by Lord Scott in Moncrieff v Jamieson?

Answer 20

The test for easements needed qualification; it should focus on whether the servient owner retains possession and control of the land.

This marked a shift from the ‘reasonable use’ standard established in Batchelor v Marlow.

Question 21

What are positive easements?

Answer 21

Easements that allow the dominant owner to perform activities on the servient land, such as:
* Right of way
* Right of drainage
* Right to erect a sign

Positive easements benefit the occupants of the dominant land directly.

Question 22

What are negative easements?

Answer 22

Easements that prevent the servient owner from doing something on their land.

Only recognized negative easements are those of light, air, and support.

Question 23

What was the outcome in Hunter v Canary Wharf Ltd regarding negative easements?

Answer 23

The court did not recognize an easement of television reception, affirming caution towards new negative easements.

This case highlighted the potential burdens such easements could impose on servient landowners.

Question 24

Is there an automatic right to light in English law?

Answer 24

No, there is no automatic right to light.

However, a legal right to light can exist concerning a defined aperture as an easement.

Question 25

What must be demonstrated to prove infringement of a right to light?

Answer 25

The amount of light remaining must be reduced below what is required for ordinary purposes of inhabitancy or business. ## Footnote This includes considerations of both past and future uses.

Question 26

What are the methods by which an easement can be created?

Answer 26

Easements can be created by: * Express grant/reservation * Implied by necessity * Implied by common intention * The rule in Wheeldon v Burrows * Prescription ## Footnote Courts increasingly treat implied by necessity and common intention as one category.

Question 27

What is an express grant of an easement?

Answer 27

A deed executed by the servient owner granting the dominant owner an easement over their land. ## Footnote This agreement is made knowingly and deliberately.

Question 28

What does 'implied by necessity' mean?

Answer 28

It refers to an easement that arises when a landlocked parcel of land has no means of access from a public highway. ## Footnote The law is very limited in implying such easements.

Question 29

What is the rule in Wheeldon v Burrows?

Answer 29

It converts quasi-easements into legal easements when part of land is sold. ## Footnote This applies if certain conditions are satisfied, such as the existence of a quasi-easement prior to the sale.

Question 30

What are the conditions for the operation of Section 62 LPA 1925?

Answer 30

Conditions include: * A conveyance must occur * There must be diversity of occupation * An existing privilege at the date of the conveyance * The right must be capable of being an easement or profit ## Footnote Section 62 automatically implies existing rights to the buyer.

Question 31

What is prescription in the context of easements?

Answer 31

It is a method where a legal easement is created after the dominant owner shows use of the right for 20 years. ## Footnote There are three types of prescription: at common law, the doctrine of lost modern grant, and the Prescription Act 1832.

Question 32

What is the requirement for a legal easement to be created through prescription?

Answer 32

The dominant owner must show use of the right for 20 years ## Footnote This presumption indicates that the right had a lawful origin.

Question 33

What are the three types of prescription?

Answer 33

* At common law * The doctrine of lost modern grant * The Prescription Act 1832 ## Footnote Each type has different requirements for establishing an easement.

Question 34

What must be shown for the right to be exercised continuously?

Answer 34

The user can be by a number of freehold owners in succession and may be intermittent in nature ## Footnote Continuous use does not require it to be constant, as seen in Diment v N H Foot.

Question 35

What does 'as of right' mean in the context of prescription?

Answer 35

The rights must be exercised without force, secrecy, or permission ## Footnote This principle ensures that the user has a legitimate claim to the right.

Question 36

What does 'without force' (nec vi) entail?

Answer 36

It includes removal of obstructions or ignoring protests from the servient owner ## Footnote Any form of coercion would invalidate the claim.

Question 37

What does 'without secrecy' (nec clam) require?

Answer 37

The user must be open and not hidden, allowing discovery by a reasonable person ## Footnote This principle was illustrated in Liverpool Corporation v Coghill.

Question 38

What does 'without permission' (nec precario) mean?

Answer 38

Permission can be in writing or oral; mere toleration does not prevent acquisition ## Footnote Evidence of payment indicates permission, which can negate claims of prescriptive rights.

Question 39

What is the presumption for prescription at common law?

Answer 39

The grant of an easement is presumed if enjoyed continuously as of right since time immemorial (since 1189) ## Footnote This presumption can be rebutted by showing certain conditions.

Question 40

What are the conditions that can rebut the presumption of prescription at common law?

Answer 40

* The right was not exercised * The right could not have been exercised * Unity of seisin ## Footnote These conditions demonstrate the complexity of establishing a prescriptive easement.

Question 41

What is the doctrine of Lost Modern Grant?

Answer 41

It presumes a grant of an easement if enjoyed continuously for 20 years or more, despite the grant being lost ## Footnote This doctrine is used as a last resort when other methods of prescription cannot be applied.

Question 42

What must the dominant owner prove under the Prescription Act 1832?

Answer 42

User as of right for 20 years (30 years for profits) is required ## Footnote This act provides a clear framework for establishing prescriptive easements.

Question 43

What happens if there is an interruption in use lasting a year or more?

Answer 43

It stops time running, requiring the claimant to restart the 20-year period ## Footnote Short interruptions are permitted, but significant gaps affect the claim.

Question 44

What should be looked for in a set of facts regarding prescription?

Answer 44

A right exercised for 20 years (30 years for profits) or more between two distinct parcels of freehold land ## Footnote This establishes the basis for claiming a prescriptive easement.

Question 45

What is the servient owner?

Answer 45

The owner of the land over which the easement exists ## Footnote The servient owner's land is burdened by the easement rights of the dominant owner.

Question 46

What is the dominant owner?

Answer 46

The owner of the land who can exercise the rights attaching to the easement ## Footnote The dominant owner's rights are facilitated by the easement over the servient owner's land.

Question 47

Is the servient owner obligated to maintain or repair the right of way?

Answer 47

No ## Footnote The servient owner has no obligation to maintain or repair the right of way once it exists.

Question 48

Is the dominant owner obligated to maintain or repair the right of way?

Answer 48

No ## Footnote The dominant owner also has no obligation to maintain or repair the right of way.

Question 49

What primarily determines the liability to maintain or repair the right of way?

Answer 49

The terms of the grant or reservation ## Footnote The specific terms of the easement agreement dictate maintenance responsibilities.

Question 50

True or False: In the absence of express stipulation, either owner is liable to maintain or repair the right of way.

Answer 50

False ## Footnote Neither the servient owner nor the dominant owner is liable to maintain or repair it without express terms stating otherwise.

Question 51

Fill in the blank: The liability to maintain or repair the right of way depends on the terms of the _______.

Answer 51

[grant or reservation] ## Footnote This refers to the legal documents that establish the easement rights.

Question 52

What happens in the absence of express stipulation regarding maintenance of the right of way?

Answer 52

Neither owner is liable to maintain or repair it ## Footnote This highlights the importance of clear stipulations in easement agreements.

Question 53

What arises from a use as of right for more than 20 years?

Answer 53

A prescriptive right of use arises ## Footnote Prescriptive rights are often recognized in property law, allowing individuals to claim rights over a property through long-term use.

Question 54

What does s79 LPA 1925 imply?

Answer 54

The intention for the burden to run is implied by s79 LPA 1925 ## Footnote LPA stands for Land Purchase Act, and s79 specifically addresses the intentions regarding burdens on land.