🌾Land: Easements Flashcards
(31 cards)
Once an easement is created, who is obliged to maintain it?
neither the servant or dominant owner is liable to maintain or repair it unless the terms of the grant/reservation say otherwise
Can you have an easement of the right to light
YES, is a recognised negative easement but there is no general right to light, must be via a defined aperture
Definition
a right/privilege in/over land for an interest equivalent to an estate in fee simple absolute in possession for a term of years absolute
How can an easement be legal?
Capable under s1(2) LPA 1925
Deed required (clear on the face, signed, witnessed, delivered)
Enforceability of legal easement in unregistered land
Unregisterable disposition (pre 1926 rules-legal interest bind the world irrespective of notice)
In express/implied
Enforceability of legal easement in registered land
Express grant/reservation: register as restriction at LR before new owner registered
Implied/prescription: overriding interest under Sch3 para 3 if:
1. buyer had actual knowledge
2. easement obvious on a reasonably careful inspection
3. easement used by person entitled in year prior to sale
When can an equitable easement arise
a. if s1(2) not satisfied eg. easement for an uncertain duration
b. as an estate contract if theres certain duration and signed writing but no deed
formalities for creation of equitable easement
signed writing (by both parties)
Enforceability of equitable easement in unregistered land
class D(iii) land charge on LCR in name of estate owner by date of conveyance
OR
pre 1965: enforceable against anyone but equities darling
Enforceability of equitable easement in registered land
interest affecting a registered estate-register as notice on charges register of owners title
Essential Characteristics
- must be a dominant and a servient tenement
- An easement must ‘accommodate’ (benefit) the dominant tenement
- dominant and servient tenements not both owned and occupied by the same person
- Easement capable of forming the subject matter of a grant. (ie. Must be capable of being granted by deed/precise definition )
meaning of dominant and a servient tenement
2 parcles of land, on benefits from easement, one has the burden of it.
meaning of ‘An easement must ‘accommodate’ (benefit) the dominant tenement’
Easement connected with normal enjoyment of the property
◊ Does it improve marketability of the land?
◊ Would any owner see it as a benefit?
What to consider when deciding if the easement is capable of forming the subject matter of a grant.
a) Capable of reasonably exact definition (not too vague)
b) No expenditure by servient owner (EXCEPT right to fencing=right to require owner of adjoining land to keep boundary fence in repair)
c)Must not be so extensive to amount to claim to joint possession of the servient tenement (must exclude grantor completely temporally and spatially)
d)Law cautious when it comes to claim for new type of negative easement
Can you have an Easement of parking
Wouldn’t be recognised IF would leave servient owner without reasonable use of their land
6 ways to create a valid easement
- Express grant or reservation
- Implied by necessity
- Implied by common intention
- Wheeldon v Burrows
- s 62 LPA 1925
- Prescription
What methods of easement creation apply both to grant and reservation?
Express
Implied by necessity
Implied by common intention
What methods of easement creation apply only to grant NOT reservation
Wheeldon v Burrows
s 62 LPA 1925
Explain express grant or reservation
○ Servient owner knowingly and deliberately executes deed granting dominant owner an easement over land owned by servient owner
meaning of reservation
=where person sells part of their land and wishes to retain rights over the land they’re selling
When will an easement be implied by necessity
Sale of landlocked land which cant be used without easement
NO alternative means of access,
When will an easement be implied by common intention
when land conveyed for known purpose any easement over land retained by grantor which is essential for the purpose the land was sold is implied into the grant in favour of the grantee
4
requirements for Wheeldon v Burrows
- existence of quasi-easement prior to sale
- Right is continuous and apparent
- Right is necessary for the reasonable enjoyment of the land sold
- right is in use at time of sale
Wheeldon v Burrows: meaning of ‘Right is continuous and apparent’
◊ Habitual enjoyment obvious from inspection of land.
◊ The feature must neither transient or intermittent eg. drains or a path.
