Easements

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4 characteristics of an easement under re Ellenborough
Dominant and Servient Tenement (Ackroyd v Smith), Accomodation, D&S owners being different people, Subject Matter of Grant
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2 precedents on Accomodation
Re Ellenborough Park: Reasonably necessary for the Enjoyment of the DT meaning garden yes and recreation no. Hill v Tupper: Easement connected to enjoyment of land and not just a personal gain which adds value.
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5 subrequirements of the Subject Matter of Grant
Capable grantee and grantor, Sufficiently definite right, within general nature of traditionally recognised rights, No positive burden, Not deprive SO of beneficial propietorship
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Case for Sufficiently Definite Rights
Re Ellenborough Park: Garden easily understood. Canary Wharf: Good TV signal not easily understood.
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Citation explaining 'within general nature of traditionally recognised rights'
Cheshire's Modern Real Property quoted in re Ellenborough Park. Won't allow 'new species of easement'
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Case showing loophole of 5th requirement
Regency Villas v Diamiond Resort
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Cases showing easements cannot give exclusive posession
Copeland v Greenhalf and Batchelor v Marlow
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Case showing use of a set of parking spaces is fine
London and Blenheim Estates
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Jamieson v Moncrieff precedent and UK case it was used in
Servient owner is still seen to have reasonable use where they can build over/under their land. Kettel v Bloomfold
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Requirements of an expressly created easement
Carved out of legal estate (leasehold or freehold), 'Forever' or for a term of years, by deed or statute
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Where does the need for duration come from?
Law of Property Act 1925 and Land Registration Act 2002
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Where does the deed requirement come from?
LRA 2002
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What has to be done for express easements to take effect?
Register with Land Registry
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4 grounds of an implied easement
Necessity, Common Intention, Rule in Wheeldon v Burrows, s62 of LOP Act 1925
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Case for Common Intention
Wong v Beaumont Property Trust
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Explain Wheeldon v Burrows
When a person sells part of their land which they needed use of the remaining land to enjoy, the courts will imply an easement to give the new owner the right to do what had proved significant for enjoyment of the land
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What does s62 of the LOPA say?
"A sale of land shall include all rights and advantages appertaining to the land."
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Case that s62 was applied in
International Tea Stores v Hobbs
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Requirements/Formalities of a Prescriptive Easement
One freehold owner against another, Continuous User, As of Right
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3 grounds of Prescriptive Acquisition
Common law presumption of long user, Doctrine of LMG (Angus v Dalton), Prescription Act 1832
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Case showing only proving that giving a grant was impossible will rebut the presumption. Evidence it was not given is not enough.
Tehidy Minerals v Norman
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Case showing you can do something illegally for 20 years of user and then acquire an easement to continue
Bakewell v Brandwood
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Bakewell v Brandwood overruled which case?
Hanning v Top Deck Travel
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Relevant Section of Prescription Act and what it says
s2. User as of right for 20 years not rebutted by showing it began after 1189. User for 40 years is indefeasible and absolute. Unless overriden by statute.
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First Report critiquing prescriptive easements
1966 Law Reform Committee Report
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What did the 1966 LRC report say?
1) Easements come from intent to gain right for nothing or by accident. (2) Easements should be by request and registered to avoid confusion. (3) PE turns neighbourliness into obligation.
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What did the minority in the 1966 LRC report say?
1) PE only occurs where owners acquiesed. (2) DO believed they already had the right. (3) 'without permission' requirement of As Of Right means neighbourliness is not punished.
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Two problems identified by the 2011 Law Commission Report
1) Take purcharsers by surpise (2) No registration means scope of easement is confusing
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Positives of PE identified by 2011 LCR
1) Bring legal position in line with percieved legal reality (2) Marketability by continuation of facilities
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Reform proposed by 2011 LCR
Stop LMG being based on legal fiction by codifying prescriptive easements
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Theorist relating to easements
Tony Honore (extended by Jeremy Waldron)
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Other cards in this set

Card 2

Front

2 precedents on Accomodation

Back

Re Ellenborough Park: Reasonably necessary for the Enjoyment of the DT meaning garden yes and recreation no. Hill v Tupper: Easement connected to enjoyment of land and not just a personal gain which adds value.

Card 3

Front

5 subrequirements of the Subject Matter of Grant

Back

Preview of the front of card 3

Card 4

Front

Case for Sufficiently Definite Rights

Back

Preview of the front of card 4

Card 5

Front

Citation explaining 'within general nature of traditionally recognised rights'

Back

Preview of the front of card 5
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