Easements

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Created by
Katie Glumart

Cards (113)

  • Easements

    Rights one person holds over land belonging to another person
  • Types of easements

    • Rights of way
    • Rights of drainage
    • Right to run cables and drains
    • Right to access parking
    • Right to storage
    • Right to shared gutters and drainage
    • Right of support
    • Right to mooring
  • Tenement

    A plot of land
  • Dominant tenement

    The land which enjoys the benefit of the right
  • Servient tenement

    The land over which the right is exercised
  • Easement

    A form of third-party right that allows one to enjoy the benefits of land ownership. It's a right annexed (linked/connected) to land to do something or prevent the owner from doing something.
  • Easements are attached to land so must be for the benefit of land (cannot exist in gross)
  • At least 65% of registered freehold titles are subject to at least one easement
  • Re Ellenborough Park [1955]

    • There must be a dominant and servient tenement
    • An easement must accommodate the dominant tenement
    • Dominant and servient owners must be different persons
    • A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
  • How an easement can be acquired
    1. Express reservation
    2. Implied reservation
    3. Necessity
    4. Common Intention
    5. Rule in Wheeldon v Burrows
    6. S62 LPA 1925
    7. Prescription (a right has been enjoyed for a long period of time)
    8. User as of right (nec vi, nec clam, nec precario)
    9. Common Law Prescription
    10. Doctrine of Lost Modern Grant
    11. PA 1832 (20 years) / (40 years)
  • Criteria for an easement
    • There must be a dominant and servient tenement
    • An easement must accommodate the dominant tenement
    • Dominant and servient owners must be different persons
    • A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
  • Criteria 1: Dominant and servient tenement

    • For a right to exist as an easement, that right must affect two plots of land
    • Easement cannot exist in gross (must be attached to the land)
    • Easement run with the property - Benefit runs with the dominant tenement, Burden runs with the servient tenement
  • Criteria 2: Accommodating the dominant tenement
    • An easement exists to benefit land, not just the owner
    • Tenements must be sufficiently close in proximity
    • Right must be of a kind that can benefit the dominant tenement, including rights that benefit a business or trade carried out on the dominant tenement
    • Easements will only benefit the original dominant tenement, not other properties/land the dominant tenement owns
  • Criteria 3: Different owners
    • Dominant and servient owners must be different persons
  • Criteria 4: Capable of forming the subject matter of a grant
    • There must be a capable grantor and grantee
    • The right must be sufficiently certain
    • The right must be the type normally recognised as an easement
  • Courts are reluctant to create new easements because they are proprietary rights - they are wary of adding novel and new rights to the list that will bind successive owners
  • The servient owner must not be obliged to spend money as a result of an easement, with the exception of the easement of fencing
  • An easement is an incorporeal hereditament which does not entitle the dominant owner to possession of the servient land, only the use of it for a specific purpose
  • Examples of easements that can exist despite excessive use of the servient tenement
    • Storage
    • Car parking
  • How easements can be acquired
    1. Express grant
    2. Express reservation
    3. Implied reservation
    4. Necessity
    5. Common intention
    6. Prescription
  • An express grant of a legal easement by a registered proprietor must be completed by registration to be a legal grant
  • Easement

    A right over the land of another person
  • How are easements created?
    1. Express reservation
    2. Implied reservation
    3. Necessity
    4. Common Intention
    5. Rule in Wheeldon v Burrows
    6. S62 LPA 1925
    7. Prescription (a right has been enjoyed for a long period of time)
    8. User as of right (nec vi, nec clam, nec precario)
    9. Common Law Prescription
    10. Doctrine of Lost Modern Grant
    11. PA 1832 (20 years ) / (40 years)
  • CRITERIA FOR EASEMENTS

    • GRANT / RESERVATION
    • EXPRESS GRANT
    • EXPRESS RESERVATION
    • EASEMENTS GRANTED OR RESERVED BY STATUTE
    • IMPLIED GRANT OR RESERVATION
    • IMPLIED OR PRESUMED ?
    • IMPLIED GRANT OF EASEMENTS
    • RESERVATION OF NECESSITY
    • RESERVATION BY COMMON INTENTION
    • RESERVATION UNDER THE WHEELDON & BURROWS 1979
    • LEGAL AND EQUITABLE EASEMENTS
    • CONTINUOUS & APPRARENT
    • NECESSARY TO REASONABLE ENJOYMENT
    • LAW of PROPERTY ACT 1925 section. 62
    • WRIGHT V MACADAM [1949]
  • The essence of the distinction between an easement by grant and an easement by reservation turns on the person in whose favour the easement is created
  • An easement is one of the rights listed in LPA 1925 s 1(2) (a) as being capable of being a legal interest in land, provided that it is granted 'for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute'
  • Easement must therefore be granted effectively - So an express grant of a legal easement must be made by deed and completed by registration
  • If a deed is not used - the intended legal easement may operate as a contract to create a legal easement as long as s2 LPMPA 1989 (So it'll be equitable)
  • Express grant of a legal easement by a registered proprietor must be completed by registration to be a legal grant, because it is a registerable disposition within Land Registration Act 2002 (LRA 2002) s. 27(2) (d) – does not operate at law until it is registered LRA 2002 s 27(1)
  • Equitable Easements must be noted on the charges register of the register, otherwise they will lose their priority to a subsequent purchaser of the land LRA s 32
  • An express reservation of an easement is often contained in the transfer of the land to the new servient owner LPA 1925 s 65
  • Easements may also be granted or reserved by statute. Easements created by statute are usually in favour of utility companies, such as suppliers of gas and electricity, and they will be legal easements
  • Implied grant of an easement is one that is 'read into' a document transferring title to the land from the 'servient' owner to the 'dominant' owner, just like an implied term in a contract
  • When land is divided or leased – it is possible for an easement to be implied into the transfer – most commonly in favour of the transferee (an implied grant) – but sometimes in favour of the transferor (an implied reservation)
  • Requirements for an easement
    • There must be a dominant and servient tenement
    • An easement must accommodate the dominant tenement
    • Dominant and servient owners must be different persons
    • A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant
  • Quasi easements indicates rights that are in the nature of easements, but which are not easements before the transfer, because the 'quasi dominant' and 'quasi servient' tenements are, at that time, in common – ownership
  • Methods of acquiring an easement
    • Express reservation
    • Implied reservation
    • Necessity
    • Common Intention
    • Rule in Wheeldon v Burrows
    • S62 LPA 1925
    • Prescription
  • Prescription

    A right has been enjoyed for a long period of time
  • There are two ways in which a easement can be created through non-express means. This relates to "implied" and "presumed" measures
  • An easement can be implied grant/ reservation only if the land would be completely unusable without the easement