proprietary interest so attaches to the land and cannot just stop someone from using it
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licence
personal interest so for the benefit of an individual and can be revoked at will
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requirements
re ellenborough park - 1) must be dominant and servient tenement, 2) d & s must be owned/occupied by different person, 3) right must accommodate or benefit dominant tenement, 4) right must be capable of forming subject matter of grant
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dominant & servient tenement
dominant = piece of land which has BENEFIT of easement servient = piece of land BURDENED by easement
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d & s must be owned/ occupied by different persons
impossible to have easement over own land = ineffective, can be landlord/tenant
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right must accommodate or benefit dominant tenement
must benefit the land, not owner/occupier Hill 1863
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right must be capable of forming subject matter of grant
must be capable grantor & grantee, right must be sufficiently definite, right must be similar to existing easements and right must not totally exclude servient owner
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types of easements
right of way - Borman, right of light - Kelk, right to drainage - Atwood, right to air - Wong, right to storage - Wright, parking - Ladbroke Retail Parks
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creation of easement
can be legal - section 1 LPA 1925
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legal easement
unlimited as owner or for fixed period e.g. term of years absolute, deed form - unless implied through continued use and entered onto register under section 27 LRA 2002 when express
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equitable easement
satisfies the conditions for an enforceable contract under section 2 LPMPA 1989
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prescription
right used for a period long enough to be considered 'legal' - acquired after 20 years of usage
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grant
seller creates an easement over land they are keeping for the BENEFIT of the LAND they are SELLING
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reservation
seller creates an easement for the BENEFIT of their OWN retained land being SOLD
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implying a grant
necessity Titchmarsh, common intention (mutual intention needed between dominant and servient owners that the easement should have been granted) - Davies, rule under Wheeldon
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Wheeldon v Burrows
quasi dominant land must BE SOLD FIRST - 3 conditions - 1) 'continuous and apparent' -Bornam, 2) 'necessary for the reasonable enjoyment of the D property' - Wheeler, 3) 'in use at the time of the sale' - Kent
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section 62 LPA 1925
4 conditions to be satisfied - 1) need a competent grantor 2) right is capable of being an easement 3) need a conveyance 4) D & S tenements must be in SEPARATE occupation prior to the conveyance - Long
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implying a reservation
courts less likely to imply a reservation than a grant - not as many methods, 1)necessity - Sweet 2) common intention (grantor & grantee) - Wong
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other methods - prescription
common law, lost modern grant and prescription act 1832 - not examinable
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enforcement
registered title - implied legal easements = if implied/ acquired by prescription, can be overriding at time of disposition unless in exceptions
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exceptions
is not within the actual knowledge of the person to whom the disposition is made, would not have been obvious on a reasonably careful inspection of land over which easement is exercisable (LRA 2002 Schedule 3), note if used within a year
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