Land - Easements

Question 1

Grantee

Answer 1

the person who receives the benefit of the easement

Question 1

Grantor

Answer 1

the person who grants the easement

Question 2

Quasi-easements

Answer 2

benefits enjoyed over one’s own land that can become easements if the land is ever partitioned

Question 3

Legal easement

Answer 3

An easement is capable of being a legal interest in land if it fulfils the requirements as to duration (equivalent to a leasehold/freehold estate in land)

Question 4

Recognised negative easements

Answer 4

Right to light; right to air; right of support (eg walls)

Question 5

Public rights

Answer 5

eg rights of way over land. Similar to an easement but exercised by the general public, rather than specific individual/body.

Question 6

A grant

Answer 6

a landowner sells or leases part of their land and gives the buyer an easement over the land which they have retained

Question 7

A reservation

Answer 7

The seller sells/leases part of their land to the buyer, and retains a right over the land sold or leased.

Question 8

An easement created by prescription can only arise in which kind of legal estate?

Answer 8

only be created between two freehold owners

Question 9

When will prescription succeed under the Prescription Act 1832?

Answer 9

if the user can prove uninterrupted enjoyment for the 20 year period

Question 10

Formalities for an express legal easement

Answer 10

An express legal easement must be created by deed and, where the servient land is registered, completed by registration

Question 11

Formalities for an express equitable easement

Answer 11

must be created by signed writing

Question 12

Implied equitable easements

Answer 12

Where an estate is transferred or granted to a person for a particular purpose, and that purpose can only be realised if the transferee or grantee can exercise an easement over land retained by the transferor or grantor, that easement will be implied by reason of common intention: Wong v Beaumont

Question 13

‘disqualifying factors’ that defeat an easement

Answer 13

Payment by the servient owner;
Use which amounts to exclusive possession;
Permission

Question 14

What does “the right must accommodate the dominant tenement” mean?

Answer 14

The right must benefit or enhance the dominant tenement

Question 15

When will the right to accommodate the dominant tenement be recognised for land that is used for business?

Answer 15

If there is a nexus between the land and the business run from that land, a right that benefits the business will also benefit the land.

Question 16

Required proximity of dominant/servient land

Answer 16

The dominant and servient land must be sufficiently proximate (do not have to be adjoining)

Question 17

What does “the right must lie in grant” mean?

Answer 17

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

Question 18

if a right has not previously been recognised as an easement, can it be recognised?

Answer 18

Yes, the list of easements is non-exhaustive. However, a new negative easement cannot be created.

Question 19

A new type of easement cannot be …

Answer 19

negative

Question 20

Tests for exclusive possession (which defeats an easement)

Answer 20

‘ouster principle’ from Batchelor v Marlow: If the owner is left with no reasonable use of the land, the right cannot be an easement
‘possession and control test’: not exclusive possession if the servient owner retains ultimate possession and control of the servient land

Question 21

An easement for an uncertain period can only be

Answer 21

equitable

Question 22

Express legal easement must be granted by

Answer 22

deed

Question 23

Where will the benefit of the easement appear?

Answer 23

Property Register of dominant land

Question 24

Where will the burden of the easement appear?

Answer 24

Charges Register of servient land

Question 25

Equitable easements

Answer 25

granted for an uncertain term; in writing + signed by the grantor

Question 26

Failed legal easement

Answer 26

May be recognised by equity. Must meet the formalities for an estate contract - in writing, signed by both parties, includes all expressly agreed terms

Question 27

Implied legal easement

Answer 27

implied into a transfer deed or a legal lease

Question 28

Implied equitable easement

Answer 28

an easement implied into a contract or an equitable lease

Question 29

When will an easement be implied by necessity?

Answer 29

where its existence is absolutely essential to use the dominant tenement

Question 30

example of an easement implied by necessity

Answer 30

for access to landlocked land

Question 31

Why did necessity fail in Pryce v McGuinness (drainage case)?

Answer 31

Necessity failed because drainage, sewerage and the supply of electricity are highly advantageous but not essential to use of the dominant land

Question 32

When can easements be implied by common intention?

Answer 32

Easements can be implied into a transfer or lease to give effect to the common intention of the parties, even though the easement is not absolutely necessary for the enjoyment of the land.

Question 33

Mandatory factor for common intention

Answer 33

the parties must intend for the property to be used in a particular way/purpose

Question 34

3 main requirements for common intention

Answer 34

(1) The dominant land must be sold or leased for a specific purpose (e.g. restaurant). (2) The purpose must be known to both parties (3) The easement claimed must be essential to achieve the common purpose

Question 35

the rule in Wheeldon v Burrows applies to what type of easements?

Answer 35

grants ONLY (NOT reservations) - new dominant landowner obtains benefits that the servient landowner previously enjoyed over that land

Question 36

Requirements for the rule in Wheeldon v Burrows

Answer 36

(1) Grant (2) enjoyed as a quasi-easement by the seller/landlord before the land was divided (3) quasi-easement must have been ‘continuous and apparent’ (4) quasi-easement must be necessary for the reasonable enjoyment/use of the dominant land

Question 37

The rule in Wheeldon v Burrows can only operate on a sale or lease of part of the land when, immediately prior to the transfer or lease, there was a

Answer 37

common owner/occupier of the whole

Question 38

Are express legal easements binding on new servient owners?

Answer 38

Yes, a properly created express legal easement will always be enforceable against a new servient owner as it must be substantively registered to be a legal easement

Question 39

express legal easements and implied legal easements on unregistered land under the principle

Answer 39

‘legal interests bind the world’

Question 40

To protect an express legal easement over registered land, you should put a

Answer 40

notice in the charges register of the servient land

Question 41

Remedies for easements

Answer 41

Prohibitory injunction to prevent interference with the enjoyment of the easement Mandatory injunction to remove obstruction Damages in lieu of injunction (or in addition to it)

Question 42

For an easement to be valid, who must it benefit?

Answer 42

An easement must benefit any owner of the land, not a specific person