Topic 2 - Easements Flashcards
(115 cards)
1
Q
What is an easement?
A
An easement is a proprietary right to use land which belongs to somebody else.
2
Q
Who is the grantee in relation to an easement?
A
The grantee is the person who receives the benefit of the easement.
3
Q
What is the dominant tenement?
A
The dominant tenement is the land that benefits from the easement.
4
Q
Who is the grantor in the context of an easement?
A
The grantor is the person who grants the easement land.
5
Q
What is the servient tenement?
A
The servient tenement is the land that is burdened by the easement.
6
Q
Give examples of easements.
A
- Rights of way
- Drainage
- Storage
- Parking on neighbouring land
7
Q
What is required for an easement to be a legal interest in land?
A
It must fulfill the requirements as to duration.
8
Q
According to LPA 1925, s 1(2)(a), what type of easement is legal?
A
An easement for an estate equivalent to an estate in fee simple absolute in possession or a term of years absolute.
9
Q
What is an equitable easement?
A
An easement not granted for the equivalent of a freehold or leasehold estate.
10
Q
Fill in the blank: The overwhelming majority of easements are _______.
A
positive
11
Q
What are negative easements?
A
Easements that prevent the servient landowner from doing something on their land.
12
Q
List the only recognized negative easements at law.
A
- Right to light
- Right to air
- Right of support
13
Q
What is a quasi-easement?
A
A potential easement created when landowners use paths on their own land that could become easements if the land is divided.
14
Q
How do public rights differ from easements?
A
Public rights are exercised by the general public rather than an individual or body.
15
Q
What is the difference between a licence and an easement?
A
A licence confers a personal right and is not a proprietary right in land.
16
Q
What is a profit a prendre?
A
A right that allows the holder to take something from the land, such as produce or minerals.
17
Q
How does an easement differ from a restrictive covenant?
A
An easement confers a right over servient land, while a restrictive covenant restricts what can be done on the servient land.
18
Q
What is a grant in the context of easements?
A
A grant exists when a landowner sells or leases part of their land and gives an easement over the retained land.
19
Q
What is a reservation in relation to easements?
A
A reservation exists when a landowner sells or leases part of their land and retains a right over the land sold.
20
Q
Fill in the blank: Most easements are created _______.
A
expressly
21
Q
What is implied creation of easements?
A
Easements that are deemed to have been created without being expressly stated.
22
Q
What is prescription in the context of easements?
A
Easements claimed by long use, typically exercised for at least 20 years.
23
Q
What are the three types of prescription?
A
- Prescription at Common Law
- Prescription under the doctrine of Lost Modern Grant
- The Prescription Act 1832
24
Q
What must be proved for prescription to succeed under the Prescription Act 1832?
A
Uninterrupted enjoyment for the 20 year period.
25
What are the basic criteria for prescription?
* Continuous user
* Used without force
* Used without secrecy
* Used without permission
26
What is the significance of the case Cordell v Second Clanfield Properties Ltd?
It illustrates how reservations are strictly construed against the person reserving them.
27
What are the capability rules for easements?
Rights must be capable of being easements, not disqualified by certain factors, and acquired properly.
28
What is the key case for assessing whether a right is capable of being an easement?
Re Ellenborough Park [1956] Ch 131
29
List the four essential characteristics of an easement as per the court in Re Ellenborough Park.
* Dominant and servient tenement
* Right accommodates the dominant tenement
* Diversity of ownership
* Right lies in grant
30
What does it mean for a right to accommodate the dominant tenement?
The right must have a direct beneficial impact on the dominant tenement.
31
What must a right accommodate to be considered an easement?
The right must accommodate the dominant tenement.
32
In Hill v Tupper (1863), what was the court's ruling regarding the claimed easement?
The right to put boats on a canal did not accommodate the dominant tenement as it only benefited the business.
33
What did the court find in Moody v Steggles (1879) regarding the right to hang a sign?
The right to hang a sign on an adjoining building was held to be an easement as it benefited the land.
34
What is necessary to determine if a right benefits the land or a business?
There must be a nexus between the land and the business run from the land.
35
What is required for the dominant and servient land in terms of proximity?
The dominant and servient land must be sufficiently proximate to each other.
36
Can the dominant and servient land be non-adjacent?
Yes, they can be non-adjacent as long as they are close enough to derive a benefit.
37
What must be true about the ownership of the dominant and servient tenements?
There must be no common ownership of the two tenements.
38
What happens to easements if the dominant and servient land come back into common ownership?
Any easements enjoyed would be extinguished.
39
What is a quasi-easement?
Benefits enjoyed over one’s own land that can become easements if the land is ever partitioned.
40
What must the right be capable of forming to qualify as an easement?
The right must lie in grant.
41
What are the requirements for a capable grantor and grantee?
The grantor must be over 18 and own the legal estate; the grantee must also be capable.
42
What must the right be capable of in terms of description?
The right must be capable of reasonably exact description.
43
What is an example of a right judicially recognized as an easement?
* Right of way
* Right of drainage
* Right of support
* Right to use sporting facilities
* Right for recreational purposes
* Right of storage
* Right to park.
44
Can a new type of easement be negative in nature?
No, a new type of easement must not be negative in nature.
45
What are the three disqualifying factors that prevent a right from being an easement?
* The exercise of the right must not amount to exclusive possession of the servient tenement
* The exercise of the right must not involve additional expenditure by the servient owner
* The exercise of the right must not depend on permission from the servient owner.
46
What does exclusive possession mean in the context of easements?
A right that amounts to exclusive possession cannot be an easement as it is too intense.
47
What is the ouster principle?
The principle that if the dominant owner has no reasonable use left of the servient land, it cannot be an easement.
48
What test did the court apply in Batchelor v Marlow regarding exclusive possession?
The reasonable use test.
49
What was the ruling in Moncrieff v Jamieson regarding exclusive possession?
The use did not amount to exclusive possession as the servient owner retained ultimate possession and control.
50
What are the two tests for determining exclusive possession?
* Batchelor v Marlow test: the ouster principle
* Moncrieff v Jamieson test: possession and control.
51
What happens if the exercise of a right requires the servient tenement owner to incur additional costs?
The right is disqualified from being an easement.
52
In what case was the right to supply hot water held not to be an easement?
Regis Property Co Ltd v Redman.
53
What must the dominant owner do to exercise their right as an easement?
They must exercise the benefit as of right, without asking for permission.
54
What was the ruling in Green v Ashco Horticultural Ltd regarding permission?
The right to park was not an easement as it depended on permission from the servient owner.
55
What must be established for express acquisition of an easement?
The right must fulfill the requirements of re Ellenborough Park and not be prevented by disqualifying factors.
56
How are most easements commonly created?
They are created expressly in writing in the transfer deed or lease.
57
What must be shown for a right to be capable of being an easement?
The right has been acquired in one of the recognised modes.
58
What is express acquisition in the context of easements?
Express acquisition occurs when an easement has been created expressly.
59
How are most easements created?
Most easements are created expressly in writing in the transfer deed or lease.
60
What are easements considered in terms of property rights?
Easements are powerful proprietary rights affecting the value and amenity of both dominant and servient land.
61
What does LPA 1925, s 1(2) define?
It defines the only interests or charges in or over land capable of being created or subsisting at law.
62
What types of easements can be legal according to LPA 1925, s 1(2)?
* An easement for an interest equivalent to an estate in fee simple absolute in possession * A term of years absolute
63
What can easements granted for a limited period be classified as?
They can be classified as legal easements.
64
What is required for expressly granted legal interests to be valid?
They must be created by deed and comply with formalities in LP(MP)A 1989, s 1.
65
What are the requirements for a document to be considered a deed?
* Must be clear it is intended to be a deed * Signed by grantor and witnessed * Delivered/dated
66
What is necessary for an easement to be legal?
The easement must be substantively registered at the Land Registry.
67
What happens if formalities or registration requirements for an easement are not met?
The easement may be recognised as an equitable easement.
68
What is an estate contract in the context of easements?
It refers to a failed legal easement that may be interpreted as an enforceable contract to create a legal easement.
69
What are the formalities for an estate contract as per LP(MP)A 1989, s 2?
* Must be made in writing * Must include all expressly agreed terms * Must be signed by both parties
70
What is a characteristic of inherently equitable easements?
They do not fall within the definition of legal easements in LPA 1925, s 1(2)(a).
71
What is required for an equitable easement to exist?
It must be made in writing and signed by the grantor.
72
What are the four methods of implied acquisition of easements?
* Necessity * Common intention of the parties * The rule in Wheeldon v Burrows * LPA 1925, s 62
73
What is an implied legal easement?
An easement implied into a transfer deed or a legal lease.
74
What is the narrow scope of easements implied by necessity?
They can only be implied where the easement is essential for the use of the dominant tenement.
75
What type of easement can be implied by necessity?
A right of way to landlocked land.
76
What is required for an easement to be implied by common intention?
The dominant land must be sold or leased for a specific purpose known to both parties.
77
What was the key case illustrating common intention?
Wong v Beaumont Property Trust Ltd [1965] 1 QB 173.
78
In Wong v Beaumont, what was essential for the enjoyment of the basement premises?
Connection to a ventilation system.
79
What does the rule in Wheeldon v Burrows apply to?
It applies on a sale or lease of part when there was a common owner and occupier of the whole.
80
What are the requirements for a right to become a full easement under Wheeldon v Burrows?
* Continuous * Apparent * Necessary for the reasonable use of the land
81
What was the outcome in Wheeler v JJ Saunders Ltd regarding implied easements?
The court held the easement was not necessary for the reasonable enjoyment of the farmhouse.
82
What is a quasi-easement?
A quasi-easement is a right enjoyed by a common owner over their own land, which may become an easement when the land is divided.
83
What rule governs the implication of easements when land is transferred?
The rule in Wheeldon v Burrows governs the implication of easements.
84
What is required for an easement to be necessary for the reasonable enjoyment of dominant land?
The easement must enhance the enjoyment of the dominant land.
85
What must be shown about the use of an easement prior to the transfer of land?
It must have been enjoyed as a quasi-easement by the seller or landlord before the land was divided.
86
True or False: An easement must have been in use immediately prior to the sale or lease of the dominant land.
False
87
What is the implication of LPA 1925, s 62?
It implies easements into a conveyance, meaning a deed transfer of land includes all easements enjoyed with that land.
88
What does the 'upgrade effect' of LPA 1925, s 62 refer to?
It refers to the method by which informal rights can be upgraded to full legal easements.
89
Key case demonstrating the 'upgrade effect' of LPA 1925, s 62?
Wright v Macadam
90
What must be established for LPA 1925, s 62 to apply?
There must be prior diversity of occupation, informal permission granted, and a conveyance of the dominant tenement.
91
Fill in the blank: LPA 1925, s 62 applies only to _______.
deeds
92
What did the court rule in P&S Platt v Crouch regarding quasi-easements?
The court ruled that quasi-easements that are continuous and apparent can be implied into transfer deeds.
93
What is required for an easement to be enforceable by the dominant owner?
The dominant owner must have the benefit of the easement.
94
What does LPA 1925, s 205(ix) state about land?
'Land' includes an easement, right, privilege, or benefit in, over or derived from land.
95
True or False: An express legal easement must be registered to be enforceable against a new servient owner.
True
96
What is the status of an implied legal easement in registered land?
It will be an overriding interest if within the actual knowledge of the new owner or obvious upon inspection.
97
What happens to an express legal easement upon transfer of servient land under LRA 2002?
It becomes noted on the charges register of the newly registered servient land.
98
What is necessary for an easement to bind the world in unregistered land?
It must be an overriding interest upon first registration.
99
What is an implied legal easement?
An easement that is not expressly granted but is recognized under certain conditions.
100
Under what conditions is an implied legal easement an overriding interest in registered land?
* It is within the actual knowledge of the new owner
* It is obvious on a reasonably careful inspection of the servient land
* It has been exercised within a year before the transfer of the servient land
101
How is an implied legal easement enforceable in unregistered land?
It is enforceable in the same way as an express legal easement, under the principle 'legal interests bind the world'.
102
What must an implied legal easement comply with?
* Definition on duration
* Be for a certain term or forever
* Be implied by one of the recognized methods
103
What is required for an express equitable easement to be enforceable against a new servient owner in registered land?
It must be protected by a Notice entered in the charges register of the servient land.
104
What happens if an express equitable easement is not registered?
It is not binding on a purchaser for valuable consideration.
105
Who is always bound by an express equitable easement, regardless of protection?
A volunteer (someone who is gifted or inherits the land).
106
What two sections from the LPA 1925 or LP(MP)A 1989 must easements comply with?
* LPA 1925, s 53(1)(a)
* LP(MP)A 1989, s 2
107
What is a Class D(iii) Land Charge?
It is a requirement for protecting express equitable easements over unregistered land.
108
What does a properly created express equitable easement require to bind everyone?
It must be protected by Notice in the charges register.
109
What remedies are available for interference with the enjoyment of an easement?
* Prohibitory injunction
* Damages in lieu of injunction or in addition to it
* Mandatory injunction to remove obstruction
110
What is the risk associated with implied equitable easements?
They are vulnerable to being defeated when the servient land is sold.
111
In unregistered land, what must be entered to protect an equitable easement?
A Class D(iii) Land Charge must be entered in the Land Charges Register.
112
What is the effect of not entering a Land Charge for an equitable easement in unregistered land?
The easement is not binding on a purchaser for money or money’s worth.
113
What must be done for an easement to be enforceable against a new owner of the burdened land?
It must be registered or noted against the title.
114
True or False: An implied equitable easement has different enforceability rules than an express equitable easement.
False
115
What does the Charges Register contain?
Any charges and other matters that affect the land.
