Easements

Front 1

What is an esaement?

Back 1

a right that enables the owner of a piece of land to exercise some type of right on another neighbouring property.

Front 2

What are the 3 fundamental characteristics of easements?

Back 2

1) they are proprietary rights and attach to the land;
2)the are irrevocable;
3) they are capable of binding 3rd parties.

Front 3

Which case sets out the 4 requirements for an easement?

Back 3

Re Ellenborough Park

Front 4

What 4 elements are set out in Re Ellenborough Park?

Back 4

There must be:
1) a dominant and servient tenement;
2) the easement must accommodate the dominant tenement.
3) The dominant and servient tenement ownes must be different people;
4) the right must be capable of forming the subject matter of a grant.

Front 5

Which case states that and easement is linked with 2 parcels of land- it's benefit attached to the dominant tenenment and its burden asserted against the servient tenenement. Therefore there can be no easement of parking a car on a piece of land.

Back 5

Lonodn & Blenheim Estates v Ladbroke Retail Park

Front 6

an easement cannot exist 'in gross' there must be a dominant and servient tenement. no easement of play golf on a golf course.

Back 6

Banstead Downs Golf Club v Customs & Excise

Front 7

Which case states that the easement must OBJECTIVELY benefit the land. It cannot merely confer personal benefits on the land-holder- hiring out pleasure boats was more important than the easement itself.

THE EASEMENT MUST APPLY INDIFFERENTLY TO FUTURE SUCCESSORS IN TITLE.

Back 7

Hill v Tupper

Front 8

The dominant and servient tenements must be in sufficient proximity to one another.
-Land in Northumberland cannot benefit land in Kent

Back 8

Bailey v Stephens

Front 9

Which case states that the dominant and servient tenement owners must be different people? One cannot have rights against himself. HOwever it is sufficient that occupiers are different, i.e. a tenant can have an easement against a landlord.

Back 9

Peckham v Ellison

Front 10

What are the 2 aspects of the requirement that the right must be capable of forming the subject matter of a grant?

Back 10

1) the easement must be SUFFICIENTLY CERTAIN
2) it must be in the general nature of rights recognised as easements.

Front 11

What is the difference between permissive and restrictive easements?

Back 11

permissive- allow the dominant land owner to carry out some activity on the servient land.

restrictive- give a right to restrain activity on the servient land.

A RIGHT CANNOT IMPOSE A POSITIVE OBLIGATION ON THE SERVIENT LAND.

Front 12

What 4 examples are restrictive easements limited to?

Back 12

1) right to light;
2) right to free flow of air;
3) right to support of buildings;
4) right to continued flow of water through an artificial watercourse.

Front 13

Which case states that and easement cannot deprive the owner of all beneficial proprietorship?
-sole use of the land for a limited purpose is compatible, but it must not derogate from the 'possession and control'retained by the servient proprietor.

Back 13

Montcrieff v Jamieson

Front 14

Which case states that joint or exclusive possession cannot be regarded as an easement?

Back 14

Copeland v Grenhalf

Front 15

What was the dicta of Montcrieff v Jamieson?

Back 15

It was found that an expressly grated right of vehicular access carried with it an easement of park cars on the servient land, because the nature of the dominant tenement precluded parking on the dominant land.
-OBITER- a right of parking can exist as an independent easement as long as there is a dominant and servient tenement.

Front 16

What is a profit a prendre?

Back 16

a right to go onto the land of another and remove certain fruits of the land.

Front 17

what is the main difference between an easement and a profit?

Back 17

a profit can exist in gross- there is no requirement of a dominant tenement!

Front 18

examples of profits?

Back 18

-right to raze animals;
-mines and quarries;
-fisheries;
-timber.

Front 19

What are the 5 ways an easement can be created?

Back 19

1) express grant
2) implied grant
3) Express reservation
4) implied reservation
5) prescription

Front 20

What is a grant?

Back 20

Where a landowner, X, creates in favour of Y, an easement or profit over and held by X.

X is the sevient land and Y is the dominant land.

Front 21

What is a reservation?

Back 21

landowner X disposes of part of his land to Y on the terms that X shall retain an easement or profit over the land transferred to Y.

X is the dominant landowner and the land transferred to Y becomes the servient land.

Front 22

What is the most common method of creation?

Back 22

express grant

Front 23

What is an express grant?

Back 23

grant of an easement by express words usually incorporated in the transfer of a freehold or grant of a leasehold estate.
-it is a LEGAL right as it is incorporated in a deed.

Front 24

In what circumstances may an express grant arise by estoppel, and which case shows this?

Back 24

When an express grant has not been formalised (in a deed) and the grantee has relied upon it to his detriment.

-In Crabb v Arun- the grantee relied upon an express grant which was not contained in a deed, and consequently ended up 'land-locked.' His detrimental reliance on the agreement gave rise to an easement by estoppel.

Front 25

Which case states that an express easement by estoppel can arise where one is granted over land to which the grantor has no title, but subsequently acquires title?- the acqusition of title 'feeds the estoppel'

Back 25

Rajapakse v Fernando

Front 26

What are the 4 categories of implied grant?

Back 26

1) easements of necessity
2) easements of common intention
3) quasi-easement (under the rule in wheeldon v burrows)
4) easements under LPA 1925 section 62

Front 27

Is an easement by implied grant equitable or legal?

Back 27

all implied grants are incorporated in a deed so they are LEGAL.

Front 28

How is an easement s necessity established and what case shows this?

Back 28

Adealon International v Merton LBC

-an easement arises where without one, the tenement cannot be used AT ALL- strictly construed.
-not enough that it is convenient or reasonably necessary.

Front 29

Which case displays an easement of common intention?

Back 29

Wong v Beaumont Property Trust- where W purchased chinese restaurant convenating to comply with public health regulations, he was entitled to an easement to construct the ventilation duct required.

Front 30

What is a quasi-easement under the rule in Wheeldon v Burrows?

Back 30

Where A transfers part of his land to B, B will gain an easement of A's continuing land which A had earlier found convenient to exercise on his own behalf for use of the transferred land. - GOES FAR BEYOND STRICT REQUIREMENTS OF AN EASEMENT OF 'NECESSITY.'

Front 31

What are the 3 requirements for the rule in wheeldon v burrows to apply?

Back 31

1) the use must have been 'continuous and apparent'- enjoyed over a substantial period of time and discoverable on inspection.
2) It must be reasonably necessary for the enjoyment of the 'dominant' tenement.
3)it must be exercised prior to and at the date of transfer.

Front 32

How is an easement under section 62 LPA 1925 created?
What is an example?

Back 32

-any easement which appertains to the land conveyed, or which is enjoyed with the land at date of conveyance.
P & S Platt v Crouch

Front 33

When will section 62 not apply? case?

Back 33

Wright v MacAdam- when the privilege contemplated by the parties was of a purely temporary nature,

Front 34

What are the requirements of an express reservation?

Back 34

1) must use express words
2) must be contained in document of transfer/deed

Front 35

What are the 2 circumstances in which an implied reservation can arise?

Back 35

1) Easement of necessity
2) easement of common intention

Front 36

How easy is it to establish an implied reservation? which case shows this?

Back 36

wheeldon v burrows (different from 'the rule in..')
-very difficult to establish - MUST BE EXPRESSED IN CLEAR AND UNAMBIGUOUS TERMS.

Front 37

implied easement of necessity?

Back 37

the transferor 'must have been out of his mind not to reserve the entitlement expressly.'- necessity very strictly construed.

Front 38

implied easement of common intention?

Back 38

heavy burden rests on transferor to show that a reservation was mutually intended.

Front 39

What are the 3 ways of establishing an easement by prescription (long user)?

Back 39

1) common law prescription
2) lost modern grant
3) prescription act 1832.

Front 40

What are the 3 essential elements of any prescription?

Back 40

1)user in fee simple- prescriptive right are perpetual in duration so will not be granted against a limited owner.
2)continuous user- extent depends on circumstances of the case.
3) user as of right- no claim can be based on claimant's illegal actions. must be WITHOUT PERMISSION- so cannot arise from payments.

Front 41

how is common law prescription established? can it be rebutted?

Back 41

- based on notion of user since time immermorial (since 1189) but can be proven by 20 years user.
-relatively easily rebutted by proof that it cannot have been in use since 1189.

Front 42

how is 'lost modern grant' established? can it be rebutted?

Back 42

-based on legal fiction that a grant was made in the past but has since been lost- based on 20 years user.
-more difficult to rebutt- must show that it was impossible to have ever been created- Tehidy Estate v Norman

Front 43

how can an easement be established under the prescription act 1823?

Back 43

section 2-
-uninterrupted user as on right for 20 YEARS.

-easement as of right for 40 YEARS and without interruption is absolute and indefeasible.

section 1-
a profit a prendre enjoyed as of right and without interruption for 60 YEARS is absolute and indefeasible.

Front 44

what is the exception to the prescription act under section 3?

Back 44

and easement of light can arise from 20 years uninterrupted use (does not have to be 'as of rigt'- i.e. free)

Front 45

what is the fundamental rule regarding any type of prescription and consent?

Back 45

there must be no consent or agreement!

Front 46

What has the law commission recommended regarding the law of prescription?

Back 46

it should be abolished and replaced with a simpler rule requiring proof of 20 years continuous use, and where appropriate the service of notice of the dominant claimant's application on the registered proprietor of the servient estate.

Front 47

What are the 3 ways that easements can be extinguished?

Back 47

1) unity of possession and title- Payne v Inwood

2) release- express release of an easement must be contained in a deed (lovell v smith) and is usually made for valuable consideration.
implied release- abandonment of right coupled with CLEAR INTENTION to release.

3)change of circumstance- local authorities who acquire or appropriate land for planning purposes have limited powers to override easements where they might otherwise impede development.