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Flashcards in Property Law Second Term - EASEMENTS Deck (106):
1

What did Luther argue about the ouster principle?

What matter is 'what the claimant could do by virtue of his E not what the owner could not do'

2

Cannot use E to benefit land other than DT

Harris v Flower

3

Re Aldred

'Good view'

3

Formalities for an equitabl easement?

S.2(1) LP(MP)A

3

What are the requirements for implying easements under Wheeldon v Burrows?

Needs to be 'continuous and apparent' and/or 'reasonably necessary' for enjoyment

4

what is the primary undisputed difference between Wheeldon and s.62? 

Necessary for reasonable enjoyment is only required for Wheeldon

4

What did the Law Com suggest about the ouster principle in Report No.327?

Allow a right to prevent STO from making reasonable use of the land if that is what he wishs to do

5

Which case considered both questions given for the ouster principle?

Moncrieff v Jamieson

6

Wall v Collins

E is at least as long as the original lease if A obtains fee simple from leasehold

6

What case outlines the implication of easements through common intention?

Davis v Bramwell

6

Why should Wood v Waddington be considered cautiously?

First instance decision that shouldn't be taken to have destroyed Wheeldon

6

E is at least as long as the original lease if A obtains fee simple from leasehold

Wall v Collins

6

Right to use flat roof equivalent to ownership

Hanina v Mrland

7

Common intention for land to be used in a particular way, and grant necessary to give effect

Davis v Bramwell

8

Hanina v Mrland

Right to use flat roof equivalent to ownership

8

Davis v Bramwell

Common intention for land to be used in a particular way, and grant necessary to give effect

9

How are implied easements protected?

Schedule 3 paragraph 3

10

Bakery to homes

Macadams Homes v Robins

10

Just needs to be reasonably necessary for wheeldon v burrows , but not equated with necessity

Hillman v Rogers

11

Who suggested we look at the ouster principle from the wrong way and should consider what the claimant could do, not what the owner cannot?

Luther

11

Provide electricity (positive burden ST E) or DT would be unusable

cardwell v Walker

12

What is the 'ouster principle'?

Not allowing right to be capable of forming subject matter of E if equivalent to possession

13

Harris v Flower

Cannot use E to benefit land other than DT

13

E necessary for DTO to use land for conveyed purpose - ventilation

Wong v Beaumont

14

What did Law Com No.327 suggest about housing estates?

For registered titled it should be possible for DT and ST to exist if owned by same person under different titles

15

What are the limitations of s.62 LPA?

Applies only to conveyance of sale/lease, can be excluded expressly/by circumstance, use must have been before conveyance and subject needs to be capable of meeting criteria for E

16

Moncrieff v Jamieson

Bottom of cliff

17

Wheeldon v Burrows

Implied grant of all rights in the nature of E (quasi-easemnts) that the seller enjoyed AND USED prior to transfer

19

Batchelor v Marlow

STO have any 'reasonable use' of the land left for 'ouster principle'?

19

What is the disputed difference between Wheeldon and s.62 LPA?

Diversity of occupation - not needed for Wheeldon, assumd required for s.62 but Wood v Waddington

21

What does Sturley argue in response to the removal of a DT means there is no limit on the needs of the DT for an E so may overburden ST?

Still limited by the terms of the grant

22

If lease ends by surrender to owner of fee simple, easement survives

Barrett v Morgan

23

Storage in cellar too much for E

Grigsby v Melville

25

Alford v Hannaford

Could not prove use of a track prior to transfer so failed under Wheeldon v Burrows

25

Implied grant of all rights in the nature of E (quasi-easemnts) that the seller enjoyed AND USED prior to transfer

Wheeldon v Burrows

26

Boundary fences positive burden - unlikely now

Jones v Price

27

What are the requirements for an easement?

DT and ST both identifiable, which differ in ownership and occupation. The E must 'accommodate' the DT and right must be capable of forming the subject matter of a grant

27

Who showed there is a reluctance to develop new easements?

Phipps v Pears

28

Hillman v Rogers

Just needs to be reasonably necessary for wheeldon v burrows , but not equated with necessity

29

Which question was Neuberger unconvinced on in Moncrieff v Jamieson?

if there was 'reasonable use' left

30

Underground sewer repairs - DTO right to come onto ST to do what is 'reasonably necessary'

Duke of Westminster v Guild

32

Bound to follow Batchelor v Marlow as not overruled

Virdi v Chana

33

Re Ellenborough Park on 'accomodate'

Geographical part to test, and recreation productive and beneficial

33

What are the formalities for a legal easement?

S.53(1)(a) LPA and LRA s.27

34

What are presumed grants of an E?

By prescription (long use)

36

For implied easements, how do you work out if they are equitable or legal?

Look at the formalities made for the estate in question - if implied into s.53(1)(a)/registered disposition then legal , but if s.2(1) LP(MP)A then equitable

36

Thinks both reasonably necessary AND continuous and apparent needed for Wheeldon v Burrows

Millman v Ellis

37

Yeung v Potel

Heavy burden of proof for easements by reservation

38

Why are there registration issues if DT is dominant land?

requires manually moving E on leasehold to freehold with a time limit

40

What are the limitations on implied easements for necessity?

Only for rights of way, if there is no other access and only for access to a public highway

41

Millman v Ellis

Thinks both reasonably necessary AND continuous and apparent needed for Wheeldon v Burrows

43

STO have any 'reasonable use' of the land left for 'ouster principle'?

Batchelor v Marlow

44

Who argued we should balanc the benefit of exploiting the DT against the burden on the ST - restricted to situations where sealed packets of land do more good than harm?

Gardner

45

'Good view'

Re Aldred

47

What was said in Macadams Homes v Robins to work out if use of an easement is excessive?

'Radical change' of 'identity' of the land and a 'substantial increase or alteration in the burden on ST'

48

Where do the requirements for an easement come from?

Lord Evershed MR in Re Ellenborough Park

49

Polo Woods v Shalton-Agar

Easement, to 'accomodate', does not have to be needed, just connected and with utility

50

What is the effect of s.62 LPA?

If B is in prior occupation with a licence to the road, and A sells that part of his land to B, B acquires an automatic easements over A's land to the road

52

Barrett v Morgan

If lease ends by surrender to owner of fee simple, easement survives

53

What case shows there is a heavy burden of proof for easements by reservation?

Yeung v Potel

53

What three subcategories are found under (4) must be capable of forming the subject matter of the grant?

Must b sufficiently certain, no positive burden and 'ouster' principle

54

Re Ellenborough on certain

'jus spatiendi'

55

Which case shows the difference between implication by necessity and wheeldon v burrows?

Borman v Griffith

56

What Law Commission Report considered Sturley's arguments but said requirements for E should not be relaxed?

No.186 (2008)

58

Duke of Westminster v Guild

Underground sewer repairs - DTO right to come onto ST to do what is 'reasonably necessary'

59

Jones v Price

Boundary fences positive burden - unlikely now

60

Wong v Beaumont

E necessary for DTO to use land for conveyed purpose - ventilation

62

Moncrieff v Jamieson on exercising right reasonable in regard to use of DT

Land was farm land, so needs to be taken into account for 'ouster principle' and capable of forming the subject of E

63

No positive burden on ST owner (easements)

William Old International v Arya

65

Why would Wood v Waddington be preferable if correct on s.62?

Fewer precursors - don't need reasonable enjoyment (Borman v Griffith; Hillman v Rogers)

67

Bottom of cliff

Moncrieff v Jamieson

68

Easement through proprietary estoppel

Eves v High

70

Canal; E must benefit DT

Hill v Tupper

71

Macadams Homes v Robins

Bakery to homes

72

What are the four ways an easement can be implied?

Necessity, common intention, Wheeldon v Burrows and s.62 LPA

73

Virdi v Chana

Bound to follow Batchelor v Marlow as not overruled

74

Grigsby v Melville

Storage in cellar too much for E

76

Claimed E to acquired land, but not landlocked - right of way was necessary for reasonable enjoyment because more suitable

Borman v Griffith

77

Could not prove use of a track prior to transfer so failed under Wheeldon v Burrows

Alford v Hannaford

78

What are the two possible questions for the 'ouster principle'?

Does STO retain exclusive possession? (Law Com) Does STO have 'reasonable use' left? (Batchelor v Marlow)

79

what case shows that an E cannot be use to benefit land other than the DT?

Harris v Flower

80

Sturley on requirements for E

Requirement of DT is 'without authority or justification'

81

What two things are needed for an equitable easeement NOT through PE?

S.2 LP(MP)A specifically enforceable through Walsh v Lonsdale

82

Heavy burden of proof for easements by reservation

Yeung v Potel

83

cardwell v Walker

Provide electricity (positive burden ST E) or DT would be unusable

84

What was it suggested is not sufficiently certain to form the subject matter of a grant of E?

Re Ellenborough - no 'jus spatiendi'; Re Aldred - 'good view'

85

Borman v Griffith

Claimed E to acquired land, but not landlocked - right of way was necessary for reasonable enjoyment because more suitable

86

Easement, to 'accomodate', does not have to be needed, just connected and with utility

Polo Woods v Shalton-Agar

87

Eves v High

Easement through proprietary estoppel

89

Hill v Tupper

Canal; E must benefit DT

90

Who is an example of someone who thought recreation could not 'accommodate' the DT?

Theobald "The Law of Land"

91

Wood v Waddington

Diversity of occupation not needed for s.62

92

What Law Com report found the ouster principle unhelpful?

Law Com No.327

94

William Old International v Arya

No positive burden on ST owner (easements)

95

Do you need to register or have formalities for implied easements?

No - automatically operate at law

96

What happens if the lease of the ST ends by lapse of time?

E ends

97

What happens if the ST lease ends by forfeiture?

Easement ends

98

What happens if the lease of the ST ends by surrender to owner of fee simple?

E survives (Barrett v Morgan)

99

What happens if the lease of the ST ends by merger, but merger is denied?

Lease and E continue

100

What happens if A buys a DT and ST, with a lease on the DT?

Easement is not destroyed

101

What happens if A buys DT and ST/owns DT and leases ST

Easement is suspended

102

What is the housing development issue under easements with ST and DT needing to be in different ownership and occupation?

Cannot create E before sale

103

How could the housing development issue be solved for easements?

Grant a 2000 year lease under s.145 LPA instead

104

What type of reasoning was employed in Wall v Collins?

Policy-based reasoning

105

Why was the decision in Wall v Collins what it was?

Without it, land would have been landlocked

106

What is the 'posh' name for easements?

Incorporeal hereditaments