Easement acquisition

  • Created by: jesskeayy
  • Created on: 05-05-19 12:35
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  • Easements- acquisition
    • Acquired by law and equity, land registration
    • Acquisition of legal & equitable easements:
      • 1. express grant of easements incl. registration. 2. implied grant of easement. 3. prescriptive acquisition of easements
    • Law and equity:
      • Equity originally conceived as a corrective system of justice
      • Legal rights created by compliance with stat. requirements of doc formality or registration
      • Generated by informal transactions, implication from circumstance and obligations
      • MAXIMS: 1. regard to substance rather than form. 2. won't suffer a wrong to go without remedy. 3.must come with clean hands
    • Creation: created by grant or reservation. 1. expressly, 2. impliedly, 3. prescriptively
      • Express: grant set out expressly in  deed of transfer of freehold ownership, or in a lease
        • Registration requirements: 1. property estoppel, 2. statute- permitting access for maintenance
      • Implied: easement of necessity arises when it's impossible to make use of tenement without easement
        • Common intention: i.e. transferor and transferee had a common intention in relation to transfer, requiring an easement
          • Wheeldon v Burrows
      • S.62 Law of Property Act 1925
      • Registration: overriding interest in unregistered interest in land overriding the register
        • Land subject to overriding interest being sold- purchaser  is bound by overriding interest
      • Prescriptive: acquired by: 1. claim made by one fee simple owner against another fee simple owner. Prescriptive claim against a tenant will fail
        • 2. Must be a continuous user. Not clear how frequent the user must be
        • User has been as of right: Nec Vi, Nec Clam, Nec Precario
        • Any user for 20 years or more was indicative of the user since 1189. Could be defeated by showing user didn't take place in 1189
          • Lost modern grant: 20 years' uninterrupted will be treated as evidence a grant must've taken at some point prior to the 20 years. Doc has been since lost
            • Angus v Dalton
              • Tehidy Minerals v Norman
        • Prescription Act 1832: only available in relation to litigation that has already begun
          • Act provides evidence of user as of right without interruption for 20 years can't be defeated by showing it begun after 1189
          • Easements of 40 years or more uninterrupted will be absolute and indefensible (s.2)
          • Bakewell v Brandwood: houses built around common without direct access to public roads. No access ever permitted to drive across the land
            • Bakewell bought the land and claimed against the people using his land for access. s.193(4) LOPA 1925
              • Given that s.193(4) prohibits driving of vehicles on common land without lawful authority, Owners of houses could not acquire prescription
                • Hanning v Top Deck Travel Group

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