Easements

Question 1

If in order to exercise a right permission must be granted, can it be an easement?

Answer 1

NO - if to exercise a right permission is required every time, the right is incapable of being an easement

Question 2

When will a pre-1926 equitable easement over unregistered land be binding?

Answer 2

If the doctrine of notice applies - if the purchaser is a bona fide purchaser for value without notice of the right, then it is not binding on them

Question 3

What is required for a legal easement to take effect?

Answer 3

For an easement to take effect at law it must be registered
- if it has not be registered, it will only take effect in equity and will not be binding

Question 4

What is required to enforce an easement over registered land?

Answer 4

Must be created by deed and registered (an easement is a registrable disposition)

Question 5

What is the case of implied legal easements?

Answer 5

These are overriding interests
- must be obvious on reasonable inspection or have been used in previous 12 months

Question 6

How to ensure an easement is enforceable (registered land)

Answer 6

As a legal easement is a registrable disposition, to be enforceable it must be completed by registration and notice placed on Charges Register of burdened land

Question 7

What is a prescriptive easement?

Answer 7

An easement is claimed by prescription where it has been exercised over the land for at least 20 years (if uninterrupted enjoyment is proved)

• prescriptive right can only be created between two freehold owners
• easements acquired by prescription are legal easements

Question 8

What are the conditions of a prescriptive easement

Answer 8

It must have been used without force, without secrecy and without permission

Must have been exercised reasonably regularly

Question 9

Does a prescriptive easement need to be registered?

Answer 9

A prescriptive easement takes effect as a legal easement even if it has not been registered and the benefit will pass automatically to the successors

Question 10

What is an easement?

Answer 10

A proprietary right to use land which belongs to somebody else

Question 11

What is the dominant tenement?

Answer 11

The person who receives the benefit of the easement is the grantee and their land which is benefitted by easement

Question 12

What is the servient tenement?

Answer 12

The person who grants the easement land is the grantor and their land, which is burdened by the easement, is the servient tenement

Question 13

Is an easement capable of being legal?

Answer 13

An easement can be legal if it is granted for a certain term (equivalent of freehold or leasehold estate)

Question 14

What is the difference between a positive and negative easement?

Answer 14

• Most easements are positive = allow the holder to use servient land in particular way
• Negative easements are rare - they prevent the landowner from doing something

Question 15

What are the only negative easements recognised at law?

Answer 15

• A right to light (through defined aperture, such as a window). There is no automatic right to light and rights to light do not attach to gardens or open land
• A right to air
• A right of support

Negative easements are treated with caution by courts

Question 16

What is the difference between a grant and reservation?

Answer 16

• Grant = (C) landowner sells or leases part of their land to D and gives D an easement over the land which C retains
• Reservation = C sells or leases part of their land to D, and retains a right over the land sold or leased to D

Question 17

What is the test for a right capable of being an easement?

Tests for a right to be recognised as an easement

Answer 17

It must be granted for a certain duration (otherwise, it can only be equitable)

Criteria from Re Ellenborough Park must be satisfied:
1. There must be a dominant and servient tenement
2. The right must accommodate the dominant tenement
3. There must be diversity of ownership
4. The right must lie in grant

Question 18

The right must accommodate the dominant tenement

Answer 18

• The right must have a direct beneficial impact on the land itself, not simply the dominant owner personally
• A right which facilitates business on the land can be an easement if a long-established business has become the normal use of that land
• Dominant and servient land must be sufficiently proximate

Question 19

What is a quasi-easement?

Answer 19

A benefit which is enjoyed over one’s own land, which is capable of becoming an easement if the land is ever portioned

Question 20

What happens to an easement when dominant and servient land come into common ownership?

Answer 20

The easement would be extinguished

Question 21

The right ‘must lie in grant’

Answer 21

The right must be capable of forming the subject-matter of a deed:

1. Right must be granted by a capable grantor to a capable grantee (over 18 and owns estate)
2. Right must be capable of reasonably exact description
3. Right within general nature of rights traditionally recognised as easements (must not be negative if not previously recognised)

Question 22

Three disqualifying factors which prevent a right from being capable of being an easement?

Answer 22

1. Exercise amounts to exclusive possession of servient tenement
2. Exercise of right must not involve additional, unavoidable expenditure by servient landowner
3. Exercise of the right must not depend on permission being given by servient owner

Question 23

What are the two tests for determining if an easement amounts to exclusive possession?

Answer 23

1. Ouster principle / reasonable use test –> servient landowner must be left with reasonable use of land
2. Possession and control test –> servient landowner must retain ultimate possession and control of the land, subject to reasonable exercise of the right

Question 24

Formalities to create an express legal easement?

Answer 24

• Must fall within definition: granted for certain term
• Must be created by a valid deed (clearly intended as a deed; signed by grantor; witnesses; delivered and dated)
• Registered at Land Registry

Question 25

How does an express equitable easement come into being and what formalities must be met?

Answer 25

Easements which fall within definition of legal easements (certain term) but have not be correctly created --> recognised as an enforceable contract - must comply with formalities for estate contract - no registration required

Question 26

How does an inherently equitable easement come into being and what formalities must be met?

Answer 26

Can only be equitable (uncertain term) - must be in writing - signed by grantor - no registration required

Question 27

When can an easement be acquired by necessity?

Answer 27

- Where it is shown that its existence is essential for any use to be made of dominant tenement - Only implied to a grant to otherwise landlocked land

Question 28

When can easement be acquired by common intention?

Answer 28

- Applies where land has been sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the easement - Available where someone is claimant to have been granted an easements impliedly

Question 29

When can an easement be acquired by rule in Wheeldon v Burrows?

Answer 29

- Where an owner (A) of a plot of land sells/leases some of their land to an owner/tenant, the new owner/tenant will impliedly acquire as easements all those rights which A had previously exercised over the land it retains - Land is divided for the first time - Applies where someone is claiming to have been granted an easement impliedly - Not possible for reservation

Question 30

Key conditions for acquisition of an easement under Wheeldon v Burrows

Answer 30

1. Right claimed is a grant 2. Right must have been enjoyed as a quasi-easement by the seller before land was divided 3. Quasi-easement was continuous and apparent 4. Quasi-easement was necessary for reasonable enjoyment of dominant land (enhance the land) 5. Quasi-easement must be in use by common owner at date of transfer or lease of dominant land

Question 31

When can an easement be acquired under s62 LPA 1925?

Answer 31

- Available where someone is claiming to have been granted an easement impliedly - Only imply an easement into a conveyance (deed) - Not possible for an easement to have been impliedly reserved by s62 - It will not imply an easement into a contract

Question 32

What is the ordinary meaning of s62 LPA 1925?

Answer 32

A conveyance of land includes all easements, rights and advantages enjoyed with that land

Question 33

What is the upgrade effect of s62 LPA 1925?

Answer 33

A brand-new easement can be implied into a document

Question 34

What are requirements for upgrade effect under s62 LPA to operate?

Answer 34

1. Grant 2. Must have been prior diversity of occupation - this is not required where there is continuous and apparent quasi-easement 3. An informal permission or licence must have been granted to the occupier of dominant tenement to use servient land 4. There must have been a conveyance

Question 35

What is the status of an easement implied by s62?

Answer 35

As it only implies easements into conveyances - all easements implied by s62 = implied legal easement

Question 36

Enforceability rules for easements held by dominant owner?

Answer 36

- Between original parties, properly created easement is enforceable by dominant owner against servient owner - Benefit of easement passes with dominant land, enabling a new dominant owner to enforce it

Question 37

Enforceability rules for express legal easements against a new servient landowner?

Answer 37

- Registered land: it will be enforceable as it must be registered to be legal - Unregistered land: properly created express legal easements will be enforceable as 'legal interests bind the world'. On first registration it will become an overriding interest noted on charges register

Question 38

Enforceability rules for implied legal easements against a new servient owner?

Answer 38

Registered land: overriding interest provided that: - easement within actual knowledge; or - obvious on reasonable inspection; or - exercised within a year before transfer Unregistered land: - easement binds the world

Question 39

Enforceability for express/implied equitable easements against new servient landowner?

Answer 39

Registered land: easement must be protected by notice in charges register of burdened land Unregistered land: protected by Class D(iii) entered in Land Charges Register

Question 40

What remedies are available?

Answer 40

- Prohibitory injunction to prevent interference with enjoyment of easement - Damages in lieu of injunction or in addition - Mandatory injunction

Question 41

What are common examples of easements?

Answer 41

Private rights over land belonging to another: - rights of way - right of storage - right to park

Question 42

What determines the nature of the easement (i.e., whether it is legal or equitable)

Answer 42

The term and the formalities used - certain term = legal - uncertain term = equitable

Question 43

What happens if the right is not capable of being an easement - Does not satisfy the criteria

Answer 43

It may just be a licence - this is merely a personal right - which affects the remedies available and enforceability

Question 44

Questions to ask to determine if there is an easement?

Answer 44

1. Is it capable of being an easement? (Re Ellenborough Park criteria) 2. Is it defeated by the 3Ps (grants exclusive possession to D land owner; payment; permission) 3. Acquired? 4. Enforceable against a third party

Question 45

What must the use of land be for an easement to be acquired by prescription?

Answer 45

- continuous for at least 20 years - the use must be without force, without secrecy and without permission Therefore, if Party B grants Party A permission this would defeat their claim for a prescriptive easement - as there must not be permission - prescriptive easement cannot exist where the use relied on to support creation of easement was permissive - if Party A had not asked for permission - after 20 years they could have legal easement

Question 46

If there is no easement, what could there be instead?

Answer 46

Simply a licence - common law grant of permission to use the land - this can be revoked at any time