Acquisition

• What are the three types of acquisition by the dominant owner?

  1. Expressly created
  2. Impliedly created
  3. Prescriptively acquired
• What is an expressly created acquisition?

  Where an easement that is clearly articulated & written grants a right from the servient owner to the dominant owner to expressly promise that they can have the right over their land
• What is the only way that an expressly created easement be legal?

  If it is contained within a deed at the time of transfer of property
• What is the first requirement for an express grant?

  Formalities needed for such rights have to be binding on third parties e.g it must be created out of a legal estate
• What is the second requirement for an express grant?

  It requires execution by deed (s.52(1) Law of Property Act 1925)
• What is the third requirement for an express grant?

  It is also required to be registered to take effect at law (s.27(2)(d) Land Registration Act 2002)
• What is an Implied grant?

  • In absence of express words: an easement can be implied into a deed of transfer (are always legal)
  • As they arise informally, they can’t be registered (but do not need to be registered)
• What are the four grounds for implied creation?

  1. Of necessity
  2. By common intention
  3. The rule in Wheeldon V Burrows
  4. By operation of s62 LPA 1925
• When would the rule in Wheeldon v Burrows & s62 LPA 1925 not apply?

  both rules won’t apply if someone is going to give another person a plot of land/sell land & retain the right over the plot
• What does it mean when an easement is granted compared to when an easement is reserved?

  Where the grantor is disposing of the dominant land but is retaining the servient land: is a grant of an easement (Grantor is not only disposing of the dominant land but is also presumed to be granting an easement over the servient land that is retained)
• What does it mean when an easement is reserved compared to when an easement is granted?

  Where the grantor is disposing of the servient land but is retaining the dominant land: is an easement to create a reservation (Grantor is reserving a limited use of the servient land: is keeping back that right to benefit the dominant land)
• How is Necessity a ground for implied creation?

  Where without an easement, the land would not have been able to be used & where land has become landlocked because the owner disposed of it
• How much needs to be proven for necessity?

  • Must be of absolute necessity to have an easement (evidence must be provided)
  • BUT does not need to be a reasonable necessity but is still a high-level required
• How would necessity be commonly used as a ground?

  Relates to plots of land which has no access to the road except for the neighbour
• What is the L.P of Manjang v Drammeh?

  L.P: if there were some other means of access, no easement of necessity would be implied even if the route is most inconvenient
• How can common intention be a ground for implied creation?

  Easement can be implied in order to give effect to the common intention of both parties if the easement is required to give effect to the intended purposes/use of the land
• What must both parties prove for common intention?

  Both parties have to show that both of them intended that the property should be used in a certain manner & that to be able to use it in a certain manner, an easement is necessary to give effect
• What is one way of common intention for the purpose of the land?

  because it is necessary for the enjoyment of an expressly conferred easement
• What is the second way of common intention for the purposes of the land?

  Circumstances where it is necessary to give effect to the common intention of the parties that an easement should be implied
• What is the third way of common intention for the purposes of the land?

  Arises from the parties’s intention that the right itself should be granted as a matter of necessary inference (very clear evidence of the necessary intention must be provided)
• What is the L.P of Wong v Beaumont Property Trust (where servient owner was required to allow the dominant owner to construct ventilation systems as a lease binding the parties stated about public health regulations)

  L.P: an easement will be implied if there is a common intention expressed in either documents or lease that will authorise the dominant owner to fulfil a certain obligation in the servient owner’s land (intention of both parties on how the premises should be used could only transpire if the achieved right was granted)
• How is the rule of Wheeldon different from section 62?

  Condition: there only needs to be one person making use of both plots
• What is the first required characteristic for the purchaser [dominant owner] to use land sold by the landowner?

  Continuous & apparent before the time of the transfer: e.g is it enjoyed over time & must be a clue as to the existence of the right from a careful inspection of the land
• What is the second required characteristic for the purchaser [dominant owner] to use land sold by the landowner?

  Reasonably necessary for enjoyment: linked to first element as if the purchaser was not continuously using land, then it would not be reasonably necessary
• What is the third required characteristic for the purchaser [dominant owner] to use land sold by the landowner?

  Exercised prior to & at date of transfer by the common owner: no implied grant of an easement can occur if use had ceased long before the relevant conveyance
• What is Section 62 of the Law of Property Act 1925?

  • Allows the implied grant of easements if rights capable of being easements are enjoyed with the dominant land at the time of conveyance
  • Provides a wide interpretation of rights enjoyed, potentially transforming quasi-easements into easements.
• How is section 62 controversial?

  1. Because it has been interpreted to operate in particular circumstances to pass not just existing easements but can effectively upgrade personal permission to a proprietary interest in the form of an easement
  2. It can create easements out of other more precarious privileges
• What is one condition of section 62?

  
  

  • There normally needs to be some form of diversity of ownership that would later become the dominant & servient part of land (where the 2 pieces of land were occupied by different people at the relevant time)
  • Paragraph 4 of section 62 of 1925 Act: "applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.”
• What is prescriptive acquisition?

  A way of acquiring a legal easement as a result of long user through the doctrine of prescription
• What are the elements of a prescriptive acquisition?

  ELEMENTS: Passage of time + acquiescence of the servient owner in full knowledge of the acts of another = prescriptively acquired right
• What are the four requirements for prescription?

  1. They are perpetual in nature: can only be claimed by and against freeholders
  2. Must be a continuous user (Definition is a matter of circumstance)
  3. Over a 20+ year period
  4. Must be user “as of right” and not “by right” (not an actual right)
• What are the three 'as of rights'

  1. Nec vi (without force)
  2. Nec clam (without secrecy)
  3. Nec precario (without permission): Acquiescence or tolerance of servient owner is not permission
• What is the L.P of Newnham v Willison?

  L.P: dom owner cannot violently assert a supposed claim, or break open a locked gate or assert right of carrying on after objection
• What is the L.P of Diment v NH Foot Ltd?

  L.P: The servient owner must have knowledge “or the means of knowledge” of the act
• What is the L.P of Williams v Sandy Lane?

  L.P: the user must be against a freehold owner of the servient land (can’t be a leassee)
• What is the L.P of Dalton V Angus?

  L.P: the fact that the servient owner did not voice their objections leads to the fictional presumption that they agreed to the use
• What is the L.P of Betterment Properties?

  L.P: for the servient owner to demonstrate their objection to their land being used, they do not have to confront the trespasser or use physical means/legal proceedings to prevent use but they would still have to demonstrate their continued objection to the user e.g by placing signs that they do not acquiesce
• Which grant is now used for prescriptive acquisition?

  Lost Modern Grant: requires proof of user for a period of 20 years to establish a fiction that a grant was made but had been lost (replaced the Statute of Westminister 1275 which stated that dom owner must prove that the date of continuous use of land was from 6th Jury 1189)
• What is i of the Land Registration Act 2002?

  (i): Easements that are protected by registration will bind a purchaser (LRA 2002, (2) (a))
• What is ii of the Land Registration Act 2002?

  (ii): Easements (whether legal or equitable) created before 13 October 2003 (the date the LRA 2002 came into force) which are overriding interests, although not registered, will continue to override. Thus, a dominant owner (as at 13 October 2003) will continue to be able to assert his or her easement against a subsequent owner of the servient land