Easements

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  • Created by: Hope
  • Created on: 11-05-16 12:33
What is an easement?
An easement is a limited right on someone else's land which allows you to do things you wouldn't normally do
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Are easements usually positive or negative? Are they common?
Positive, yes, at least 65% of freehold properties are subject to an easement
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What is the status of the law at the moment?
Its a bit outdated and archaic, so the LC published a report and a draft bill
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What right does easements give? What would that right be without it?
They give a right to do something, which would be a trespass without an easement
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What is the most common easement?
Right of way over someone elses land
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What are the four characteristics of an easement?
There has to be a dominant and servient tenement, the easement has to accommodate/benefit the dominant tenement, both tenements must be owned by different people, right must be capable of forming subj. matter of a grant
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What case do these come from?
Re Ellenborough Park
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When is the right capable of being an easement?
When it fulfils all four characteristics?
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What does the requirement that there has to be a dominant and servient tenement mean?
The easement must benefit one plot of land and burden another plot, can't benefit a person or people
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What is a case example of this? What happened?
Alfred Beckett v Lyons- there was no plot of land to be benefitted
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What is the opinion of this rule?
It is long-standing, but controversial, some think it is an unnecessary restriction on the kind of easements people can make
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What does it mean that the right must accommodate the dominant land?
It has to enhance the use and enjoyment of the land, not just benefit the owner of the land in a personal capacity
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Which case makes the rule that the plots must be close together?
Bailey v Stephens
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What is the limitation of this rule? Authority?
Enhancing the value of the land economically doesn't work- Re Ellenborough park
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What does Re Ellenborough Park give as a condition that would work?
It has to benefit the use and enjoyment of the land
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What is a case example of an easement benefiting a business?
Moody v Steggles
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Why must plots of land be occupied by different people?
If one person owns them both then there is no point in having the easement because is isn't trespass
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When is this normally a problem?
With larger developments, where one developer owns a lot of land and wants to sell of parts as they go along
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What change did the LC propose?
that the plots didnt need to be owned by different people, provided that both plots are registered. If not, the old rule would still apply
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What are the five requirements for an easement to be capable of forming the subject matter of a grant?
Must be capable grantor and grantee, right must be definite, right cannot amount to exclusive possession, right is of sort traditionally recognised as being easement, must not impose positive burden
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What kind of people are capable of being grantors? What kind aren't?
You can be an owner, or a long-term leasee, and reasonably competent, normally an individual, not a company or fluctuating group of people. Licencees aren't competent enough
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What does it mean that the right must be definite?
It must not be over-broad of ill-defined
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What was wrong with TV signals in Hunter v Canary Wharf?
They would over-burden the servient land
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What are some examples of easements that won't work here? Any examples?
View, light, air flow, right to wander freely on someone else's land (Antrobus v AG)
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What characteristic can an easement not have? Why? Example?
Can't have exclusive possession, because that would make it indistinguishable from a bigger right like a lease. Reilly v Booth
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What about constant use of a small strip of land?
Not ok- Copeland v Greenhalf
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Storing something in a small shed?
Wright v Macadam
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What about intermittent exclusive use of land? Example?
Yes ok, Miller v Emcer - right to use a lavatory
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What are the two ways of approaching whether the right to park a car is capable of being an easement?
Reasonable use and degree approach, possession and control approach
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What was the question in London and Blenheim Estates v Ladbroke Retail Park? What was the rule?
Could rights of of customers of a shopping centre to park their cars in a central car park be an easement? The essential question is one of degree. If the easement would leave the servient owner without any reasonable use of the land, it can't work
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What does this mean?
The exercise of the easement has got to leave the servient landowner wth some use of their land
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What guidelines are given in Batchelor v Marlowe?
If the easement doesn't take up all the room, or takes up all the room intermittently then it can work
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What was the discussion in Moncrieff v Jamieson?
The use of the possession and control doctrine, which is a more relaxed way of dealing with the problem
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What are the problems with this ruling?
A lot of what they said was in obiter, and they don't consider all the issues, they don't agree and a lot of what they say isn't celary
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What does Lord Scott's approach claim? Why?
A right is capable of being an easement even where the servient owner is excluded substantially from the use of their land for a considerable length of time. A person should be able to do what they want
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What important distinction does Lord Scott make?
A distinction between use and occupation (activity on the land), and possession and control (underlying beneficial ownership of the property)
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What does Lord Scott say is capable of being an easement?
A right is capable of being an easement even if it amounts to sole use of the land as long as the servient owner retains possession
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Who criticised Lord Scott's judgement? What is the problem with Moncreiff now?
Lord Neuberger and the Law Commission. The ruling was so unclear that people can't negotiate and have to come to court all the time
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So how do we apply Batchelor and Moncrieff? Example?
Kettel v Bloomfold Ltd- followed Batchelor but ended up with Moncrieff anyway
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What are the methods of acquiring an easement?
Grant or reservation
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What are the ways of acquiring a grant?
Express, implied, statute, prescription
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On what grounds can you imply a grant of an easement?
Necessity, common intention, rule in Wheeldon v Burrows
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What are the ways of acquiring a reservation?
Express or implied
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On what grounds can you imply a reservation?
Necessity or common intention
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What can you not use to reserve an easement?
The rule in Wheeldon v Burrows, Statute
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What are the necessary formal requirements you need to expressly grant a legal easement?
Duration of easement has to be equiv. to freehold or leasehold in extent, has to be created out of legal estate in servient land, granted by deed, registered
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What is an implied grant?
There was no express words granting the easement in a transfer but the relevant easement is going to be recognised anyway by the court
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When can you imply a grant by necessity? Authority?
Only when the land cannot be used at all by the easement. Union Literage Co.
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What does the owner of the dominant land need to show? What is the classic situation for this to occur?
They need to show the easement is necessary for the use and enjoyment of the property and this normally occurs for landlocked properties
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What is a case example of implied necessity? Where do they find the intention?
Nickerson v Baraclough - you wouldn't have bought the property otherwise
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Which case shows the strictness the courts approach this with?
MRA Engineering v Trimster
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Is vehicular access necessary? Authority?
Sweet v Sommer - the question was left open
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What question do you ask when implying a grant by common intention?
Does the easement reflect the intention of both the parties?
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What is a case example of this rule?
Wong v Beaumont
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What are the two hurdles to overcome to prove common intention? What case does it come from?
Stafford v Lee- He must establish a common intention as to some definite and particular user. Then he must show that the easements he claims are necessary to give effect to it
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What is the rule in Wheeldon v Burrows?
Whatever easements the owner used when they owned all of the land must still be in place when they transfer it
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What features does that easement need to have to be enough?
there must be a quasi-easement, it has to be continuous and apparent, has to be necessary to the reasonable enjoyment of the property, has to be used at the time of the transfer of the dominant land
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What is a quasi-easement?
Easement which the owner of the whole plot of land used to benefit the part of the land which they subsequently transfer away
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When will a quasi-easement be continuous and apparent?
Has to be used over a continuous period of time and apparent on close inspection of the land
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What example was given in Hansford v Jago?
A well-worn track
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Which case was rejected for having no visible mark?
Ward v Kirkland
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What did the old rule used to be regarding necessity for use and enjoyment? Example?
all you needed to show was that the enjoyment of the property would be assisted, or made more convenient and comfortable- Borman v Griffith- necessity was enough
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What is the change now? Example?
It is much stricter, necessity isn't enough - Millman v Ellis
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Do you need to show both that it is continuous and necessary or are they the same thing?
You used to have to show both but now it looks like if you can show enough necessity you might be ok
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How strict is the requirement that the quasi-easement should have been in use at the time of transfer?
Not unduly strictly- Borman v Griffith
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What kind of transfers can you use here?
Deed or contract
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What provision is used for statutory acquisition? What does that provision do?
s62 LPA- word saving which implies certain rights into the conveyance so you don't have to write it all down
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Upon what kind of transfers will it operate? Authority?
Only conveyance by deed, not contract - Borman v Griffith
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What does the provision do?
transfer existing easements without having to do anything and create new easements out of purely revocable privileges or licences under certain conditions
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What is the typical order of triggering of this act?
Someone is the sold owner of two plots of land, then they grant occupation rights to one plot to someone else, The person who has occupation of the second plot is given some kind of privilege or licence, 2nd plot is sold
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What are case examples of this working?
International Tea Stores v Hobbs, Wright v Macadam, Goldberg v Edwards
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What are the conditions of operation of s62?
Prior diversity of occupation on dominant and servient tenements, right must be capable of constituting an easement, treatment must not be purely temporary or very intermittent, defeated by clear evidence of contrary intention
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What is a case example of land not being owned by different people?
Sovmots Investments v SS for the Environment
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Are there any potential exceptions to this rule? Examples?
Possibly, if you can show the claimed right is continuous and apparent although this has never been confirmed- courts seem to be happy with this approach - Long v Gowlett, Platt v Crouch, Wood v Waddington
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Which way of acquiring an easement is easier? Reservation or grant? Why?
Grant- courts are reluctant to enforce a reserved easement because the law seems to think that the reservation of an easement is under the owner’s control.
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What are the two methods of implying an easement by grant?
Necessity (same as for grant) and common intention (much stricter)
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What do you have to show to prove common intention? Example?
That there was a common intention that the grantor should have the easement that they claim. Re Webb's Lease
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What does the LC have to say about it all?
They recommend that we abolish the distinction between grant and reservation
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Card 2

Front

Are easements usually positive or negative? Are they common?

Back

Positive, yes, at least 65% of freehold properties are subject to an easement

Card 3

Front

What is the status of the law at the moment?

Back

Preview of the front of card 3

Card 4

Front

What right does easements give? What would that right be without it?

Back

Preview of the front of card 4

Card 5

Front

What is the most common easement?

Back

Preview of the front of card 5
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