Land 3 - Easements

Question 1

What is the difference between a legal and equitable easement?

Answer 1

Legal:
- granted for equivalent of freehold or leasehold estate.
- Binds all
Equitable:
- not granted for a fixed time period.
- Binds if known

Question 2

What is a positive and negative easement?

Answer 2

• Positive: use servient land in a particular way
• Negative: prevents servient owner from doing something on their land by giving dominant owner right to receive something

Question 3

What are quasi-easements?

Answer 3

Potential easements - they would become easements if the land was divided e.g. a path

Question 4

What is the overview process of determining if a right is an easement Or just a licence?

Answer 4

1. Tests in Re Ellenborough Park
2. Consider disqualifying factors
3. Acquisition - expressed/implied/prescription

Question 5

What are the tests in RE Ellenborough Park for determining if a right is an easement?

Answer 5

1. Dominant & servient land (2 identifiable pieces of land, one with benefit and one with burden)
2. Owned by different people
3. proximity.
4. Right must apply to land
5. Right must Lie in Grant:
   - capable grantor & grantee;
   - capable of reasonably exact description; &
   - judicially recognised

Question 6

What rights have been judicially recognised as easements?

Answer 6

Right of
- way
- drainage
- support
- sport and leisure facilities
- recreational activities

Question 7

For the right to ‘accommodate the dominant tenement’, what must be considered?

Answer 7

Determining whether there is direct beneficial impact on dominant land:
- benefit the land
- Affects nature, quality and use of land
- Right is not expressly personal
- Dominant and servient land are sufficiently proximate (can have a field in middle)

Question 8

What disqualifying factors are there for easements?

Answer 8

1. Exclusive Possession: can’t deprive servient owner of use of land - consider ouster principle & whether they have ultimate possession and control
2. Payment: servient owner can’t be required to spend extra money for the right; servient must allow dominant tenement to carry out repairs at own expense
3. Permission: initial permission allowed but right can’t be exercised with permission everytime

Question 9

How is a legal easement expressly created?

Answer 9

1. Created by deed
2. For a certain term (freehold or leasehold)
3. Where servient land is registered, easement must be registered

If not, may be an equitable easement if recognised as estate contracts:
- in writing
- contain all terms
- signed by both parties

Question 10

What is necessary for an express equitable easement?

Answer 10

1. Uncertain term
2. In writing
3. Signed by grantor
   No registration needed (can be protected by notice)

Question 11

What are the 4 methods of implied acquisition of easements?

Answer 11

1. Necessity (landlocked land)
2. Common Intention (land used for purpose E needed for purpose)
3. Rule in Wheeldon v Burrows (grants only)
4. S62 LPA 1925 (grants only)

Question 12

What is ‘necessity’ for implied acquisition of easements?

Answer 12

Its existence is essential for use of dominant land
- Only used for rights of way to otherwise landlocked land
- Where land is inaccessible by vehicle i.e. only by foot, it can be deemed necessary

Question 13

What is ‘common intention’ for implied acquisition of easements?

Answer 13

• Specific Purpose
• Purpose known to all parties
• Easement essential to achieve specific purpose

Where land sold/leased for a particular purpose and purpose can’t be achieved without the easement OR when it’s necessary for enjoying another expressly granted easement
Wong v Beaumont:

Question 14

What is the Rule in Wheeldon v Burrows and its requirements?

Answer 14

• Only for grants (new owner)
• Quasi easement
• continuous and apparent (degree of permanence & some evidence as to its existence)
• Necessary for reasonable enjoyment of land (lower bar than necessity)
• In use at date of transfer

Where an owner sells/leases land, the new owner/tenant impliedly acquires all rights the original owner exercised i.e. quasi easements

(Will be a legal easement as read into transfer)

Question 15

What is the effect of S62 LPA 1925? What are its requirements

Answer 15

Buyer/tenant receives benefit of all existing easements & informal rights can be ‘upgraded’ into full legal easements

1. Only for grants, not reservations
2. Prior diversity of ownership
3. Informal permission/licence granted
4. Conveyance of dominant tenement i.e. transfer deed or lease
   Can also be used with quasi easements that are continuous and apparent

Question 16

What is an implied legal easement?

Answer 16

Where an easement is implied into a transfer deed or a legal lease as the easement takes its status from the status of the document it is implied into

Question 17

What is an implied equitable easement?

Answer 17

Where the easement were implied into a contract or an equitable lease

Question 18

What are the requirements for enforcing an express legal easement for reg or in reg land?

Answer 18

1. Duration: certain term or forever
2. Created by deed
3. Registered land: must be registered;
4. Unregistered land: bind the world & overriding interest upon 1st registration

Question 19

What are the requirements for enforcing an implied legal easement if there is a change in the subservient landowner in registered land?

Answer 19

• Duration: from document implied into
  (Lease ends with lease, freehold goes on)

Overriding interest if:
- actual knowledge of new owner, or
- obvious, or
- exercised within last year.

• Volunteer/donee always bound

Question 20

What are the requirements for an express/implied equitable easement on registered land to be enforced?

Answer 20

• Must be protected by notice on Charges Register to bind future servient owners
• always binds the grantor
• always binds someone gifted or inherited the land.

Question 21

What are the requirements for an express/implied equitable easement on unregistered land to be enforced against new owner of survient land.

Answer 21

• must be protected by D(iii) Land Charge at Land Charges Register
• always binds the grantor
• always binds someone gifted or inherited the land.

Question 22

What remedies are there for enforcing an easement?

Answer 22

• Prohibitory injunction
• Mandatory injunction (to remove obstruction)
• Damages in lieu of injunction or in addition

Question 23

How long for prescription to create a legal easement and what will defeat it?

Answer 23

20 years uninterrupted reasonably regular use (1 yr = interruption)

Without:
- force
- secrecy
- permission

Question 24

What is a legal easement

Answer 24

Reserved for ever or set period of time

If not, it will be an equitable easement

Question 25

If an implied easement is implied into a tenancy document, when will the easement come to an end?

Answer 25

When the lease ends

Question 26

What is a grant?

Answer 26

Person who sells land gives a right over the retained land.

Question 27

What is a reservation?

Answer 27

The seller retains a right over the land sold.

Question 28

How can easements be created?

Answer 28

- express creation - implied creation - prescription (20 years)

Question 29

What is required for prescription?

Answer 29

- 20 years - continuous user - as a right Not by: - force - secrecy - without permission

Question 30

What are the dominant and subservient land?

Answer 30

- Dominant - benefits from right - Subservient- burdened by right

Question 31

What is required for a deed

Answer 31

- clear it’s intended to be a deed - witnessed - signed by grantor witness - delivered (dated)

Question 32

When is an implied legal easement enforceable in registered land?

Answer 32

- actual knowledge of new owner, or - obvious, or - exercised in the prior year.

Question 33

When is an implied legal easement enforceable against the subservient owner for unregistered land?

Answer 33

Binds and becomes overriding interest on first reg. no need for notice or registration and doesn’t trigger registration.

Question 34

What’s an express legal easement?

Answer 34

Expressed in a deed

Question 35

What’s an express equitable easement?

Answer 35

Expressed in writing and signed by grants but falls short of a deed

Question 36

What sort of easement does a common intention create?

Answer 36

- Applies to grants and reservations - Applies legal easements into deeds and equitable easements into contracts.

Question 37

What sort of easement does wheeldon v burrows create?

Answer 37

- Only creates grants - Legal into deeds and equitable into contracts.

Question 38

What sort of easement does necessity create?

Answer 38

Applies to grants and reservations (but rare for R) If deed legal if contract equitable.

Question 39

Is the easement enforceable if there is a change in dominant owner

Answer 39

Yes, the easement follows the land. It doesn’t matter if the one is registered or unregistered or if legal or equitable.

Question 40

Can s62 and the rule in burrows be used for reservations?

Answer 40

No, only grants