Term
| Under what circumstances would an easement be equitable? |
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Definition
1) Fails on formalities
2) Parites deliberately enter contract to create legal easement in future (therefore = estate contract)
3) Granted for uncertain period
4) Grantor has equitable estate |
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Term
| Enforcement of easements by new dominant owner... which staturory provision = KEY? |
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Definition
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Term
| Registraton of easements... discuss... |
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Definition
| After deed... where the land has an unregistered title, a legal easement is automatically binding and needs no further protection. Where the land has a registered title, a legal easement should be registered on the charges register of the servient tenement. |
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Term
| What are the different ways in which an easement can be created? |
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Definition
1)Express grant or reservation
2) Implied grant or reservation
3) Prescription |
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Term
| Where an easement has been created by express grant or reservation, what does this mean? |
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Definition
| That it was expressly and intentionally created, either by grant (given) or reservation (reserved/taken) |
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Term
| Where an easement has been created by implied grant or reservation, what does this mean? |
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Definition
| Comes into existence without having been expressly granted/reserved by the parties. |
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Term
| For an easement to be created by implied grant/reservation, what does it have to be... |
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Definition
| It has to be implied into either a deed or a conract... cannot be implied into thin air. (the courts will do the implying) |
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Term
| What are the different ways of achieving an easement by implication? |
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Definition
1) Implied by necessity
2) Common intention
3) Wheeldon v Burrows [1879]
4) s62 LPA |
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Term
| If 'fighting' for an implied reservation easement, what are the methods of implied acquisition that are available to them? |
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Definition
1) Necessity
2) Common intention |
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Term
| If 'fighting' for an implied grant easement, what are the methods of implied acquisition that are open to them? |
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Definition
1) Necessity
2) Common intention
3) Wheeldon v Burrows [1879]
4) s62 LPA |
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Term
| What are the cases you can use for 'easements implied by necessity'? |
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Definition
1) Manjang v Drammeh [1991]
2) Pryce v McGuiness [1966] |
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Term
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Definition
VERY HARD TO GET AN IMPLIED EASEMENT OF NECESSITY
LAND HAS TO BE COMPLETELY LAND LOCKED BY OTHER LAND, BEFORE AN IMPLIED EASEMENT OF NECESSITY WOULD BE GIVEN
D owned a plot of land.
C acquired half of D's plot
the plot D held was bounded on one side by the river, and the other side = C's plot of land
D claimed an implied easement of necessity
HELD - D could access his land by boat, therefore he was not entitled to an implied easement of necessity. |
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Term
| If you have a case where land is completely landlocked by other land... therefore, to access the land, party A needs an implied easement of necessity over B's land. However, what happens if the deed A and B produced expressly stated that no right of way would be created? |
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Definition
| Courts will stick to what it says in the deed. Therefore, no implied easement of necessity will be given. |
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Term
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Definition
| AN EASEMENT WILL NOT BE IMPLIED OUT OF NECESSITY MERELY BECAUSE IT CAN BE SEEN AS HIGHLY ADVANTAGEOUS TO THE DOMINANT TENEMENT, SUCH AS EASEMENTS OF DRAINAGE, SEWERAGE AND THE SUPPLY OF ELECTRICITY |
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Term
| What does 'non derogation from grant' mean? (w.r.t easements) |
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Definition
| You can't give something for some purpose, and then hold back something which is also necessary for the thing you gave to be used for that purpose. |
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Term
| In what circumstances will an easement be implied out of common intention? |
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Definition
Where land has been sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the existence of an easement... implied that the dominant and servient tenement owners intended for the easement to exist... MUST BE THE COMMON INTENTION AT THE TIME OF GRANT
(can also be used w.r.t reservations, but = EXCEPTIONALLY HARD). |
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Term
| What must you do in order to acquire an easement which has been impliedly reserved by common intention? |
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Definition
THERE IS A HEAVY BURDEN OF PROOF RESTING UPON THE INDIVIDUAL SEEKING THE EASEMENT.
He will have to show that the reservation was mutually intended, however he may also have to show that the right in question had been openly exercised prior to the transaction into which it is claimed it has been implied. |
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Term
| What case can you use in a discussion of easements implied out of common intention? |
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Definition
| 1) Wong v Beaumont Properties [1965] |
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Term
| Wong v Beaumont Properties [1965] |
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Definition
NON DEROGATION FROM GRANT - EASEMENT IMPLIED OUT OF COMMON INTENTION, HOWEVER, PARTICULAR EASEMENT MUST BE COMPLETELY NECESSARY TO GIVE EFFECT TO THAT INTENTION
C leased property from D
Terms of lease = C could run a restaurant, but C MUST comply with all health regulations and eliminate all cooking smells from the premesis
C & D didn't appreciate that in order to do these things, C would have to use a ventilation system which would have to be attached to the D's property
D refused to allow C to attach the ventilation system
HELD - Court granted C an easement implied out of common intention
'the law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties'
THE SUBJECT OF THE GRANT (EASEMENT) MUST BE USED FOR SOME DEFINITE AND PARTICULAR MANNER, IT IS NOT ENOUGH THAT THE SUBJECT OF THE GRANT SHOULD BE INTENDED TO BE USED IN A MANNER WHICH MAY OR MAY NOT INVOLVE THIS DEFINITE AND PARTICULAR USE |
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Term
| What is the rule in Wheeldon v Burrows [1879] |
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Definition
QUASI EASEMENTS WHICH HAD BEEN ENJOYED FOR THE BENEFIT OF THE LAND THEY NOW OWN
Where a person, A, owns a plot of land and decides to sell/lease some of this land to another, B, B will impliedly acquire as easements those rights which A had previously exercised over the land he (A) retains. Prior to the sale, these rights were enjoyed by A as quasi easements. |
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Term
| Wheeldon v Burrows [1879] in simplistic terms... |
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Definition
I own a huge plot of land, one side of the land is bounded by a forest. The other has access to the roads etc. To get from the roads to the forest, I would follow a footpath through the land.
I split my land in half and sell the half which is bounded by the forest to X. As... before I sold the land to X, I would access that land through a footpath which runs through the half I now live on(the half bounded by the woods), X automatically recieves the footpath as an easement. |
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Term
| In order for the rule in Wheeldon v Burrows to operate, what are the requirements? |
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Definition
1) The easement must be continuous and apparent
2) The easement must be necessary for the reasonable enjoyment of that land
3) The easement must have been used at the time of the grant by the common owner (as a quasi easement) for the benefit of the part granted. |
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Term
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Definition
IN ORDER FOR THE WHEELDON V BURROWS RULE TO APPLY, THE RIGHT YOU ARE CLAIMING MUST BE CONTINUOUOS AND APPARENT
Visible upon inspection and neither transitory nor intermittent.
Doesn't have to have been in continuous use 24/7, but there must be a sense of permanence... must = regular use.
(e.g. a worn pathway would = evidence) |
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Term
| Constagliola v English [1969] |
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Definition
IN ORDER TO GET AN EASEMENT UNDER WHEELDON V BURROWS, THE RIGHT MUST HAVE BEEN IN USE AT THE DATE OF TRANSFER... DOESN'T HAVE TO BE AT THE EXACT TIME, BUT HAS TO BE SHOWN IT WAS EXERCISED IN THE RECENT PAST
The 'right' hadn't been exercised in the past 10 months.
HELD - this was sufficient. |
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Term
| Wheeler v JJ Saunders [1995] |
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Definition
IN ORDER FOR AN EASEMENT TO BE GRANTED UNDER WHEELDON V BURROWS, THE RIGHT MUST BENECESSARY FOR THE REASONABLE ENJOYMENT OF THAT LAND, FOR THE PURPOSE FOR WHICH IT WAS TRANSFERRED.
In this case, the C already had a right of way / right of access to his land. He wanted a second right of way.
HELD - it was not necessary for the reasonable enjoyment for his land, as he already had a right of way. |
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Term
| W.r.t application of the Wheeldon v Burrows rule, what is significant about something like a right of drainage? |
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Definition
| Drainage would not be apparent upon inspection. Therefore, it would not pass the test, and you couldn't get an implied easement from the Wheeldon v Burrows method. |
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Term
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Definition
CASE WHICH SAID THAT ONLY ONE OF THE FIRST TWO WHEELDON V BURROWS REQUIREMENTS WERE NECESSARY. (DISPUTED)
e.g. if a right was in use and continuous & apparent, OR, if the right = necessary. Whereas the test actually is, it must have been in use etc.. AND it must be necessary.
Later cases have followed this approach, HOWEVER, the predominant view rejects this approach. |
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Term
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Definition
| IN ORDER FOR THE RULE IN WHEELDON V BURROWS TO APPLY, THE RIGHT MUST HAVE BEEN IN USE BY THE OWNER AT THE DATE OF TRANSFER. IT WOULD NOT BE SUFFICIENT IF THE RIGHT HAD ACTUALLY BEEN IN USE BY A TENANT OF HIS... MUST BE THE OWNER. |
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Term
| Is there any way of ousting the rule in Wheeldon v Burrows? |
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Definition
| YES - it can be excluded by parties to the contract/deed. |
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Term
| Can you claim a reservation under Wheeldon v Burrows? |
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Definition
| NO - IT ONLY APPLIES TO GRANTS. |
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Term
| What is the 'magical' effect of s62 LPA? |
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Definition
It turns licences into legal easements, upon either the grant of a new lease / sale of the freehold reversion.
w.r.t grant of a new lease, new lease could be granted to current tenant, or to a new tenant.
So... If your landlord gives you permission to store coal in their shed... upon either the grant of a new lease, or the sale of the freehold reversion (to a new landlord), the licence becomes a legal easement. |
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Term
| In what way could the 'magical' effect of s62LPA make sense? |
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Definition
| Welll... If your landlord tells you you can store coal in their shed. If you then re-new your lease, a material factor influencing the renewal of the lease could = the fact that you get to store coal in the shed. Similarly, if a new tenant acquires the lease, they may have seen the old tenant storing their coal, and that could have equally been a material factor for them. |
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Term
| s62 LPA, what are the two effects it has? |
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Definition
1) conveys all benefits appertaining to land upon the land's transfer
2) The 'magical' effect... turns licenses into legal easements upon renewal of the lease or the transfer of the freehold reversion. |
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Term
| Sovmots Investments Ltd v Sos Environment [1979] |
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Definition
OBITER - IN ORDER FOR THE MAGICAL EFFECT OF S62 LPA TO WORK, THERE HAS TO HAVE BEEN PRIOR DIVERSITY OF OCCUPATION OF DOMINANT AND SERVIENT LAND.
(however, note: P&S Platt exception)1 |
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Term
| What does P&S Platt Ltd v Crouch [1979] add to the discussion of the magical effect of s62 LPA? |
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Definition
| Previously, it was though/obiter said that in order for the magical effect to work, there has to have been previous diversity of occupation of servient and dominant tenements. In P&S Platt however, it was held that where an owner sells part of his land to a new owner, if there are any continuous and apparent quasi-easements which the first owner used, s62 will convert these quasi-easements into legal easements. Therefore, ousting the need for prior diversity of occupation. |
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Term
| P&S Platt Ltd v Crouch [1979] |
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Definition
| W.R.T MAGICAL EFFECT OF S62... NO PRIOR DIVERSITY OF OCCUPATION IS NEEDED. YOU CAN HAVE AN OWNER SUB-DIVIDNG LAND. AS LONG AS THE RIGHT = CONTINUING AND APPARENT, S62 WILL TURN IT INTO A LEGAL EASEMENT (E.G. QUASI-EASEMENT WILL BECOME LEGAL EASEMENT WHICH BENEFITS NEW OWNER) |
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Term
| s62, Wheeldon v Burrows & P&S Platt Ltd v Crouch [1979]... discuss... |
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Definition
| Platt v Crouch essentially means that s62 can be used instead of Wheeldon v Burrows (as long as the right is continuous and apparent).. it is more advantageous, as there is then no need for the right to be necessary (In wheeldon, it has to be necessary). However, s62 ONLY applies to deeds, whereas wheeldon v burrows applies to deeds and contracts. |
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Term
| What does the lecturer suggest you do in exam questions w.r.t wheeldon, platt v crouch & s62? |
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Definition
1) If you have diversity of ownership... apply Wheeldon v Burrows first. THEN apply s62 Platt v Crouch
2) If you have no diversity of ownership, apply s62 Platt v Crouch |
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Term
| Does s62's magical affect apply to reservations? |
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Definition
| NO - only applies to grants. |
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Term
| Does s62's magical affect apply to grants? |
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Definition
| YES - it does not apply to reservations |
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Term
| s62 & Re Ellenborough Park... |
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Definition
| s62 turns a license in to an easement. HOWEVER, what was the licence must still meet the requirements set out in Re Ellenborough park (+ the additional 3 requirements) |
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Term
| Green v Ashco Horticulturalist [1966] |
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Definition
FOR MAGICAL EFFECT OF S62 TO WORK, THE LICENCE'S RIGHT MUST MEET EASEMENT REQUIREMENTS PARK REQUIREMENTS.
REMEMBER... IF YOU HAVE TO SEEK CONSTANT PERMISSION FOR USE = RIGHT IS NOT CAPABLE OF BEING AN EASEMENT
In this case, a man was allowed to use a an accessway at the back of a shop. Sometimes he could use it, sometimes the gate was closed and he had to ask for permission to use it. HELD - casual intermittent permission = insufficient, s62 wouldn't work its magic. |
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Term
| How can 'prescription' be used to acquire an easement? |
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Definition
| Prescription allows the acquisition of easements, where the right has been exercised over a pice of land for a long time, but where no actual grant of the right can be tract (as cannot trace grant of the right, cannot rely on s62). |
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Term
| What are the requirements for 'prescription'? |
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Definition
There are three different methods from claiming an easement through prescription. For each of them...
1)the exercise of the right must have been 'as of right' - neither by force, by stealth, nor by permission.
2) the exercises of the right must be by/on behalf of the owner of a fee simple estate against another owner of a fee simple estate
(therefore, = not available for tenants, leaseholders, etc.)
3) The use must be continuous until established. |
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Term
| Barney v BP Truckstops Ltd [1995] |
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Definition
IN ORDER TO CLAIM AN EASEMENT BY PRESCRIPTION, THE RIGHT MUST HAVE BEEN EXERCISED AS OF RIGHT. CANNOT BE BY STEALTH - SERVIENT TENEMENT OWNER MUST KNOW THAT THE RIGHT IS BEING EXERCISED
D's claim to a prescriptive easement of drainage failed because the use, while not surreptitious, was unknown to and unsuspected by the C. |
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Term
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Definition
IF THE C CAN PROVE THAT THE RIGHT HAS BEEN EXERCISED SINCE 1189, THE COURT WILL IMPLY AN EASEMENT
(a bit crazy)... easy to defeat, e.g. find some proof that there used to be a church over the right of way, some proof to show that the right could not / did not exist. |
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Term
| Lost modern grant prescription |
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Definition
IF CONTINUOUS USER FOR AT LEAST 20 YEARS CAN BE SHOWN, THERE IS A JUDICIAL PRESUMPTION THAT AT ONE STAGE THERE WAS A VALID DEED OF GRANT OF AN EASEMENT WHICH HAS SINCE BEEN LOST
(madness!!!)
As the doctrine is a fiction, the court will not admit evidence to show that there never was a grant. |
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Term
| What are the three ways of acquiring an easement by prescription? |
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Definition
1) Common Law prescription - 1189
2) Lost modern grant prescription
3)The Prescription Act 1832 |
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Term
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Definition
VERY CONFUSING, NOTHING TO GET TOO INVOLVED WITH ON THE GDL
JUST SAY 20 YRS PLUS. |
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Term
| To be legal, an easement has to be created by deed. Therefore... Implied easements, how can they be legal? |
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Definition
Because the easement will be implied into the deed. Therefore, the law will see it as having been created by deed.
(unless it is implied into a contract, in which case it will be equitable). |
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Term
| In order for an expressly created easement to be legal, how must it have been created? w.r.t rtegistered land? |
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Definition
1) By deed
2) It must then be substantively registered - as a notice on the charges register of the servient land. |
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Term
| Do implied easements on registerd land have to be substantively registered? |
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Definition
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Term
| If an implied easement arises through an equitable lease / estate contract, what will their status be? |
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Definition
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Term
| If an easement is acquired through prescription... onr egistered land... does it have to be substantively registered? |
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Definition
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Term
| If the grantor of an easement only has an equitable, rather than legal estate, what are the formalities that must be followed in order to create an easement? |
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Definition
| It must comply with s53(1)(a) LPA - must be in writing and signed by the grantor. |
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Term
| When selling the dominant tenement, how can the easement be passed? |
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Definition
| s62 LPA - the easement will automatically pass to the new owner of the dominant tenement. |
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Term
| When transferring the servient tenement, on registered land, under what circumstances will the burden of an easement be passed? |
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Definition
1) Where an expressly created easement is registered (legal = s27(2)(d) LRA... Equitable = s32 LRA)
2) Implied legal easement = overriding interest = schedule 3(3) LRA... if buyer knows of it, should know of it, or if it has been exercised within one year of the acquisition. |
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Term
| On unregistered land, under what circumstances will the burden of an easement be passed to a new owner of the servient tenement? |
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Definition
1) Legal interests bind the world (= express legal & implied legal)
2) Equitable easement must be registered in accordance with LCA. Where it has not been registered, the easement will be unenforceable against a purchaser of legal estate for money or money's worth (e.g. marriage). |
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Term
| What are the different ways in which an easement can be extinguished? |
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Definition
1) Express release - by deed
2) Implied release
3) Unity of seisin (unity of posession and ownership) |
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Term
| How can you expressly extinguish an easement? |
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Definition
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Term
| How can you impliedly extinguish an easement? |
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Definition
| Release is implied where the dominant tenement owner abandons his rights. This is a question of fact, and mere non-use is generalyl insufficient, unless accompanied by some act adverse to the enjoyment of the right, evidencing an intention on the part of the dominant owner to abandon the right. |
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Term
| What are the different remedies available to enforce rights held under an easement? |
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Definition
1) Injunction
2) Damages (legal easement only)
3) Abatement - self-help remedy, allows the dominant tenement owner to remove any obstruction which is preventing the use of the easement. (no more force than is reasonably necessary) |
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