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)they 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

Authority case for dominant and servient tenement (2 lands)

Back 5

Lonodn & Blenheim Estates v Ladbroke

Front 6

Must accommodate dominant tenement . personal rights will not do

Back 6

Hill v Tupper (pleasure boats)

Moody v steggles - pub sign

Front 7

The dominant and servient tenements must be in sufficient proximity to one another.

Back 7

Bailey v Stephens

Front 8

Must be owned by different people

For this 4 requirements

Back 8

1) capable grantor - own free hold2) capable grantee 3) rights must be sufficiently certain 4) can't be too burdensome on the servient owner - money

Front 9

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

Back 9

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

Front 10

What is the difference between permissive and restrictive easements?

Back 10

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 11

What 4 examples are restrictive easements limited to?

Back 11

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 12

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 12

Montcrieff v Jamieson

Front 13

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

Back 13

Copeland v Grenhalf

Front 14

Will the easement leave servient land owner in possession and control of his land

Back 14

Montcrieff v Jamieson

Front 15

What is a profit a prendre?

Back 15

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

Front 16

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

Back 16

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

Front 17

examples of profits?

Back 17

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

Front 18

What are the 5 ways an easement can be created?

Back 18

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

Front 19

What is a grant?

Back 19

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 20

What is a reservation?

Back 20

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 21

What is the most common method of creation?

Back 21

express grant

Front 22

What is an express grant?

Back 22

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 23

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

Back 23

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 24

What are the 4 categories of implied grant?

Back 24

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 25

Is an easement by implied grant equitable or legal?

Back 25

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

Front 26

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

Back 26

-an easement arises where without one, the tenement cannot be used without one

Sweet v sommex - braking wall

Manjang - by boat

Re mra engineering - by foot

Front 27

Which case displays an easement of common intention?

Back 27

Wong v Beaumont - chainies restaurant / ventilation

Stafford v Lee building a house

Front 28

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

Back 28

Where a person sells one of his adjoining land and he refuses to give the benefits he use to enjoy (which is continues and apparent) when he owned both to the new buyer and those benefits are neccessary for reasonable enjoyment of that land.

Front 29

Cases for wheeldon vs burrows

Back 29

Milkman v Ellis - safe pathway

Wheeler vs Saunders - pathway not neccassary

Front 30

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

Back 30

-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 31

When will section 62 not apply? case?

Back 31

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

Front 32

What are the requirements of an express reservation?

Back 32

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

Front 33

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

Back 33

1) Easement of necessity
2) easement of common intention

Front 34

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

Back 34

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

Front 35

implied easement of necessity?

Back 35

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

Front 36

implied easement of common intention?

Back 36

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

Front 37

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

Back 37

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

Front 38

What are the 3 essential elements of any prescription?

Back 38

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 39

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

Back 39

- 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 40

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

Back 40

-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 41

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

Back 41

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 42

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

Back 42

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

Front 43

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

Back 43

there must be no consent or agreement!

Front 44

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

Back 44

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 45

What are the 3 ways that easements can be extinguished?

Back 45

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.