Easements Flashcards

Question

Harris v de Pinna [1886] Right must be sufficiently definite Right claimed must lie in grant Easements

Answer 1

No right to privacy

Answer 2

Rights of way

Answer 3

Rights of Light

Answer 4

Rights to water in a defined channel

Answer 5

Rights to Air in a Defined Channel

Answer 6

Rights to Support

Answer 7

Rights to drainage and other rights of 'pipeline'

Answer 8

Rights to Pollute a River

Answer 9

Rights to Create a Nuisance

Answer 10

Rights to use sporting and leisure facilities such as golf course, tennis court, swimming pool

Answer 11

No new negative easements

Answer 12

* When Canary Wharf development was being built residents of surrounding areas didn’t want it to happen. Claimed Canary Wharf Tower interrupted their TV signal and claimed they had a right to a TV signal via prescription/long use. Court said it was not a recognised easement and said that it was negative (restricted right to build) and so was rejected.

Answer 13

* **Servient owner must not incur additional compulsory expense** * servient land suffers the easement, but not the owner – right claimed as an easement was a right to hot water, which would have caused servient tenement extra expense.

Answer 14

* **S****ervient owner not obliged to do or spend anything**. * Not obliged to pay for repairs on right of way, but **dominant owner must be allowed onto the land to carry out repairs at own expense**.

Answer 15

* A**s long as servient owner can recover dominant owner’s share, can still be an easement.** * ****Easement for water supply claimed. Servient owner claimed couldn’t exist as an easement as meter was on his land and he had to pay the water bill. Right, therefore, failed as easement because of rule in **Regis Properties v Redman.** Court rejected as above.

Answer 16

* **Must be exercisable as of right** – * No need to ask for permission every time you want to do something. Dominant owner moving van every time servient owner wanted to park. Therefore, was a licence.

Answer 17

**Right to store articles in a cellar was held not to be an easement as amounted to exclusive use of the servient tenement**.

Answer 18

**Right to use a garden was an easement.** Dominant owner claimed servient owner had interfered with this by creating a gravel driveway over part of the garden.

Answer 19

* C**an have easement for car parking as long as doesn’t exclude servient owner from the land**. * Therefore, where right is to park 1 car in several spaces no problem. However, where 1 space and 1 car would be exclusive possession.

Answer 20

Right to park in 1 of 4 space was an easement

Answer 21

* ‘**ouster principle**’: “**is the servient owner left with any reasonable use of his land?”** * Right to park 6 vehicles between 8.30 am and 6pm during working week held to be exclusive possession as right to park in dominant part of the day. **Servient owner effectively excluded from his land at time he wanted to used it**

Answer 22

* **“does the servient owner retain possession and control of the land?”** * Rarking dispute in Shetland Isles. Dominant owner had right to park and couldn’t do anything else on the land. Servient owner could do anything on the land apart from park. Therefore, had ultimate possession and control. Lord Scott has said **“does the servient owner retain possession and control of the land?”** If so, will be fine. * However, **Batchelor** is still binding

Answer 23

* decision in **Moncrieff** applied obliquely despite acknowledging **Batchelor** was the test.

Answer 24

* **Re Ellenborough Park** * Dominant and servient tenement * Accommodates the dominant tenement * No common ownership/occupation * Lies in grant * **Disqualifying factors** may mean a licence not an easement * Additional obligatory expense * Exclusive possession * Intermittent permission * **RIGHT IS CAPABLE OF BEING AN EASEMENT…so move on to look at acquisition and protection**

Answer 25

* In circumstances where someone has not acquired an easement expressly, it may be possible for him to rely upon the easement having been implicitly acquired instead. * The **‘missing’ easement must be implied into a document**: * transfer * lease * Contract * **IF THERE IS NO DOCUMENT TO IMPLY THE EASEMENT INTO, THERE CAN BE NO IMPLIED EASEMENT!!**

Answer 26

* **Necessity (grant and reservation)** * **Common intention of the parties (grant and reservation)** * **Wheeldon v Burrows (grant only)** * **LPA 1925, Section 62 (grant only)**

Answer 27

* **No easement of necessity will be inferred if there is some other means of access to the land, even if difficult and inconvenient.** * Claimed right of way and court refused because claimant had alternative access by sailing a boat across the river.

Answer 28

* **May be possible for a right of way exercised over the servient land to be implied out of necessity.** * Claimant bought land between a road and a railway. Railway was converted to a trunk road. Wanted to build a service station but needed planning permission. Sold off some of his land near the minor road and failed to get right of access. Didn’t get planning permission so didn’t have access from either road. Asked for easement to be implied by necessity on land he’d sold off. Court refused to do so as he should have reserved it specifically.

Answer 29

**An easement will not be applied out of necessity merely because it can be highly advantageous to the dominant tenement**, e.g. drainage, sewerage, supply of electricity

Answer 30

* **Doctrine of necessity is not founded upon public policy at all but by an implication from the circumstances.**

Answer 31

* An **easement** will be **implied by common intention** where **land has been sold/leased to another for a particular purpose** and that **purpose cannot be fulfilled without the easement sought**. * **Very specific** common intention at date of grant * **Particular** easement essential for **particular** purpose * Tenancy leased for the purpose of being a restaurant only required an easement to connect to the landlord’s ventilation system. Without the ventilation system didn’t meet health and environmental standards so couldn’t be a restaurant.

Answer 32

* General intention to how the property will be used is not enough; **the parties must intend for the property to be used in some definite and particular manner.**

Answer 33

* Claimant claimed right of way to landlocked woodland which he’d bought. * Claimed right of way by common intention of parties for construction traffic over adjoining land and then for domestic use afterwards * **Granted** as woodland surrounded by residential properties and transfer plan showed those properties and **held by both parties that it was to be developed as residential land and that wouldn’t be possible without this access**.

Answer 34

* **Right of way of an emergency fire exit in a business park implied by common intention because necessary to give effect to the common intention to have the land fully occupied and used for maximum profit.**

Answer 35

Common intention to reserve an easement will only be found If the facts are ***‘not reasonably consistent with any explanation other than that of an implied reservation’.*** * Heavy burden of proof on person wishing to rely on an easement having been **impliedly reserved** by common intention.

Answer 36

* **Courts very strict** – reservation relating to **renewal of gas pipes was not extended to laying of new pipes**, as grantor had 2 chances to include such a reservation expressly in the original lease or subsequent deed of variation.

Answer 37

* On sale or lease of part of land, grantee will receive all **quasi-easements** which are * **Continuous and apparent** AND * **Necessary to the reasonable enjoyment of that land** AND * **Used at the time of the grant by the owner of the whole for the benefit of the part sold/leased**

Answer 38

* **Rule in Wheeldon v Burrows can only operate on a sale or lease of part when, immediately prior to the sale/lease, there was a common owner and occupier of the whole.**

Answer 39

* **To be apparent, the right must have been discoverable or detectable from careful inspection of the land by a person ordinarily conversant with the subject,** * e.g. worn pathway evidence of right of way

Answer 40

* The rule in **Pyer v Carter** re easement being **continuous and apparent** is **one of common sense, honesty and decency**

Answer 41

* Easement is **necessary to reasonable enjoyment of the dominant land** if it is necessary for **convenient and comfortable enjoyment of that land**

Answer 42

**Where alternative access is just as convenient, the other route will not be deemed necessary and not implied as an easement.** * Original owner of country property – enjoyed right of access over their land as quasi-easement, sold off part of their land, and buyer claimed right of way across land retained by the seller, even though there was an alternative use of access. Access had been used by original owner to access the property so was a quasi-easement – continuous, apparent, in use at time of sale etc. However**, alternative access was just as convenient**. Therefore, claim was **NOT necessary** for reasonably enjoyment of land.

Answer 43

**Where alternative access is a detour and dangerous it may be deemed necessary for enjoyment of the land and implied as an easement.** Same set up as Wheeler v Saunders

Answer 44

**Right must have been used in the recent past by the common owner; a previous tenant won’t suffice**

Answer 45

* Implied acquisition under the rule in **Wheeldon v Burrows** can **operate upon an agreement to sell or lease, e.g. contract, as well as a sale/lease** If implied into a lease, will last for the duration of that lease only

Answer 46

* A **conveyance includes all “easements, rights and advantages**… appertaining to or enjoyed with the land” * ‘conveyance’ = Transfer and Lease by deed * 2 functions of s.62: * ‘**ordinary’** operation of s.62: transfers the **benefit** of **existing** easements on transfer of land * ‘**unintended’** operation of s.62: method of **creating** an easement! – a license can become an easement

Answer 47

* **Where land has been divided before the informal permission is given,** the **permission becomes an easement when the leased land is re-let or sold** * L owns and occupies PLOT A * L also owns PLOT B - Already leased to T * During lease of Plot B, L allows T to use Plot A informally (e.g. for storage) * **When new lease of Plot B granted (or when Plot B sold) informal permission becomes full legal easement**

Answer 48

* **Must be a transfer/lease of legal estate by deed** – doesn’t work on an equitable lease or contract for sale * **Casual intermittent permission is not enough** * **Only applies to grants, not reservations** * **Can be excluded – LPA 1925, s62(4)** * **Must be diversity of occupation when the right was granted UNLESS the right was continuous and apparent** (Platt v Crouch)

Answer 49

* **S62 only operates where there is diversity of occupation at the very beginning** – must have been a division of occupation before permission was granted.

Answer 50

* **Not an essential requirement to have 2 different occupants as long as the right was continuous and apparent**. * Crouch family owned a hotel and an island on Norfolk broads * When they owned the whole lot would go across to the island and allow hotel guests to do the same, moor boats etc * Crouch family sold hotel to Platt, but retained the island. Platt claimed had right to moor boats on the jetty on the island for hotel guests under S62 even though no such right in transfer deed * **Judge ruled that as long as it was continuous and apparent, s62 raised quasi-easements to easements**

Answer 51

Confirmed decision in Platt v Crouch. ## Footnote **Not an essential requirement to have 2 different occupants as long as the right was continuous and apparent.**

Answer 52

* **grantee’ exercises right for 20+ years** * No force * No secrecy * No permission * **Continuous use** * **Mills v Silver [1991]** – right of access to hill farm over track on adjoining land – right of way by prescription – had been used between 1922 and 1981 – no express permission had been given, but owners knew about it, so wasn’t secret * 1987 – tried to make the track concrete for use in all weathers, but owners sued for trespass. Court said easement had been acquired by prescription. * **Generally only a freeholder can claim a right in prescription**

Answer 53

* Common law **presumes that if you have been exercising your right for more than 20 years been exercising it since start of legal memory (1189)** * **To defeat must show not possible to exercise since 1189 (because building/pipes etc didn’t exist then)**

Answer 54

* **If you’ve been exercising a right for more than 20 years, law presumes it was granted by deed since 1189 and the fictional deed has been lost** * Can be **defeated by showing the servient land was owned by someone who had no capacity to grant that easement** * A fiction upon a fiction

Answer 55

* Act says **if you have been exercising a right for more than 20 years then you have an easement, even if it was interrupted for a year**. * **If it was interrupted for more than one year, you don’t have an easement**

Answer 56

* **When the user of the dominant tenement changes**, the **servient tenement should not be made subject to any significantly different or additional burden** **to that existing at the date of the express or implied creation of the easement**. * House with the benefit of drainage was extended and became an institution housing 150 people. Dominant owner had to restrict the usage to that which was used at the time of the grant.

Answer 57

* **When the user of the dominant tenement changes**, the **servient tenement should not be made subject to any significantly different or additional burden** **to that existing at the date of the express or implied creation of the easement**. * Dominant tenement had right of access at all times and for all purposes over servient land. Injunction granted when dominant owner wanted to change use of his land from agricultural to a caravan park for 200 caravans.

Answer 58

* **Requires registration to exist as a legal easement** (**LRA 2002, s27(2)(d)**) * Once registered**, will bind anyone who acquires the servient tenement** * In practice, owner of the dominat tenement must be registered as owner of easement. * Registrar must enter a notice on charges register of servient tenement (**LRA 2002, s38**) * If not registered, not legal * If an easement arises by operation of **LPA 1925, s62,** it is specifically excluded from **LRA 2002, s27(2)(d)** by **LRA 2002, s27(7).**

Answer 59

* Overriding interests under **LRA 2002, Sch 3 para 3** and **bind subsequent owner of servient tenement** if: * **Easement is within actual knowledge of person to whom disposition being made OR** * **Obvious on reasonably careful inspection** of land over which easement is exercisable OR * **Exercised within a year before date of purchase**

Answer 60

* Should be protected by a **notice on charges section** of register of **servient tenement (LRA 2002, s32**) * Will then be **binding on any subsequent owner of servient tenement (LRA 2002, s29(2)** * If **not** entered, equitable easement will **not bind purchaser for value of servient tenement (LRA 2002, s29(1)** but **will bind everyone else**, e.g. people given the land or inherit it (**LRA 2002, s28**)

Answer 61

* A d**eed is necessary for an express release of a legal easement**, but **equity may interfere if one party has been prejudiced by relying on a written or oral release**.

Answer 62

**Release is implied when dominant owner abandons his rights.**

Answer 63

**Right of way not used for over 50 years and blocked by fences, held to be abandoned.**

Answer 64

Right of way not used for over 100 years because alternative access routes was **not abandoned**, and could be resurrected

Easements Flashcards

(88 cards)