When are easements capable of being legal?
Granted for either:
- An estate in fee simple absolute in possession (freehold)
OR
- A term of years absolute (leasehold)
How must an express legal easement be created?
By deed
How is an equitable easement created?
If any agreement for an easement is entered into which complies with contract requirements, this creates a contract for an easement enforceable in equity
What are the 4 required characteristics of an easement?
- Must be a dominant and servient tenement
- Easement must accommodate the dominant tenement
- Dominant and servient tenements must not be both owned and occupied by the same person
- Easement must be capable of exact definition, not involve expenditure by servient owner, and generally must be positive
When can an easement be negative?
Easement to light, air and support
What is an express grant of an easement?
Where the servient owner executes a deed granting the dominant owner an easement over land owned by the servient owner
What is an express reservation of an easement?
Where seller retains right over land they are selling - land retained becomes dominant land, and land sold becomes servient
When would an easement implied by necessity arise?
Arise on sale of a land-locked parcel of land
Applies to grants and reservations
What should you look for when identifying if there is an easement implied by necessity?
The land has no means of access other than the right claimed
When would an easement implied by common intention arise?
Where land is conveyed for a purpose, any easement over land retained by the grantor which is essential in order for that purpose to be carried out is implied into the grant in favour of the grantee
Applies to grants and reservations
What should you look for when identifying if there is an easement implied by common intention?
Common purpose known to the parties
Right claimed is needed in order for the common purpose to be fulfilled
When would a Wheeldon v Burrow easement arise?
Converts quasi-easements which existed when the landowner owned all the land, into full easements when part of the land is sold
Under what conditions will the quasi-easement convert to an easement under Wheeldon v Burrows?
- Existed prior to sale
- Right continuous and apparent
- Necessary to the reasonably enjoyment of the land sold, and
- In use at time of sale
What should you look for when identifying if there is a Wheeldon v Burrows easement?
Land was in common ownership and owner exercised quasi-easements over their own land
Land owner then sold part of the land
What are s 62 easements?
Pre-existing licence at time of sale which is converted into an easement on the sale of the freehold
What are the conditions for a s 62 easement?
- Must be a conveyance
- Diversity of occupation of the two parts of land at the time of grant (UNLESS right is continuous and apparent)
- Existing privilege at date of conveyance
- Right must be capable of being an easement (4 essential characteristics)
What should you look for when identifying if there is a s 62 easement?
An existing licence/permission and a subsequent conveyance
There must be diversity of occupation (but not if the right is continuous and apparent)
What is prescription?
Where the dominant owner can show the use of a right as an easement for 20 years - creates a legal easement
Must have been used without permission, force or secrecy
What are the 3 types of prescription?
- At common law
- Doctrine of lost modern grant
- Prescription Act 1832
