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Land Law - Section 7 - Easements and Profits - Coggle Diagram

- - - - Courts will NOT recognise ANY New Negative Easements
        
        Negative easement: 'right enjoyed without ANY action by the DOMINANT tenement's owner
        
        For example, a positive easement: you have to walk through someone else's land, exercising your right, vs:
        
        A negative easement might be a right of light or right of support
      - The easement must not be TOO EXTENSIVE; ie IS a right to use the land, NOT POSSESS IT
        
        If the 'easement' creates substantial interference with the owner's land, or 'deprives them of reasonable enjoyment of their land, it is too extensive and thus NOT an easement
      - The easement must be NO POSITIVE BURDEN ON THE SERVIENT TENEMENT
        
        Ie it cannot require the servient tenement to do anything or spend any money as a result of the easement, it cannot oblige them to do anything other than let the dominant tenement exercise its right
- - - - Applies if land would be COMPLETELY LANDLOCKED WITHOUT the easement being granted, and is thus necessary for the land
      - Occurs during sale
      - Applies both for rights of way and Rights of SUPPORT
      - Strictly necessary for access to land
    - - Easement is not strictly necessary for access to the land; BUT
      - Easement was COMMONLY INTENDED BETWEEN THE PARTIES FOR THAT USE OF THE LAND; and
      - Was not included in the deed because of an oversight
    - - Party is selling OR leasing part of their own land, and they EXERCISED A RIGHT (eg right of way) WHEN THEY OWNED THE ENTIRE LAND
      - WOULD have been EASEMENT were it not for the fact the land was only owned by 1 person
      - Remember, only for a GRANT of an easement to a new purchaser; NOT if landowner forgets to reserve easement for themselves
      - This rule only occurs when a landowner sells part of their land to someone else. The transfer impliedly contains ALL the rights of enjoyment the original landowner enjoyed
      - 1. FIRST establish ALL these conditions exist, THEN
        
        A quasi-easement exists
        
        Continuous: The right was IN USE (by the seller immediately before transfer
        
        The right must be apparent and continuous - in other words, its use is obvious; AND
        
        The right is NECESSARY for the REASONABLE ENJOYMENT of the property
        
        this is different from a grant/reservation being there by necessity – necessity = landlocked and land’s completely unusable otherwise, necessary = for reasonable enjoyment
    - - Applies when there is a transfer deed; ie during a conveyance. One piece of land being sold which had easement related to another
        
        Statutory provision that essentially upgrades a license that the owner of the land had granted to a tenant TO an easement when the land is SOLD OR LEASE IS created/RENEWED
      - Implies ANY easement into a transfer of property AS LONG AS:**
        
        The right has been continuous (in regular use)
        
        The right is apparent (obvious on reasonable inspection) - eg including in docs!
        
        The Easement can be described as one (ie like in a deed)
    - - Easement that exists to facilitate some other interest
      - Eg you have right to take water from a spring; this implies ancillary right of way TO spring
  - - - Only if land would be completely landlocked otherwise
      - Applies to Right of Way and Right of Support
    - - Easement is not strictly necessary for access to the land; BUT
      - Easement was COMMONLY INTENDED BETWEEN THE PARTIES FOR THAT USE OF THE LAND; and
      - Was not included in the deed because of an oversight
- - - - The easement or profit was EXERCISED WITHIN 1 YEAR OF THE DISPOSITION; OR
      - The purchaser has actual knowledge of the easement or profit; OR
      - The easement/profit is obvious on reasonably careful inspection of the land (sort of like constructive notice in terms of physical inspection of the land);