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EASEMENTS - Coggle Diagram
EASEMENTS
For a right to be recognised as an easement;
- it must be capable of being an easement (re Ellenborough Park),
- it must not be prevented form being an easement by the presence of any disqualifying factors, and
- it must have been acquired as an easement.
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DISQUALIFYING
FACTORS
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Exercise of the right by the dominant owner must not involve additional, unavoidable expenditure by the servient owner
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Test for exclusive possession
Ouster principle- servient owner is left with no reasonable use of the land. Restriction is such that it makes his ownership of the land illusory.
How easements arise:
- Grants
- Reservations
- Implied creation
- Prescription
Prescription
- It must have been exercised over land for at least 20 years,
- It must have been exercised reasonably regularly (meaning of this depends on the facts), and
- It must have been used without force, without secrecy, and without permission.
ACQUISITION
Implied Acquisition
Methods of implied acquisition;
- Necessity (grant & reservation),
- Common intention of both parties (grant & reservation),
- The rule in Wheeldon v Burrows, (grant only) and
- s. 62, LPA 1925 (grant only)
Express Acquisition
To be an express legal easement, it must be;
- Granted/ Reserved for a set period of time or forever,
- Created by a deed, and
- Substantively registered.
A failed legal easement may be equitable if it is in writing, contains all the agreed terms, and signed by both parties.
s.2, LP(MP)A 1989
A easement for an uncertain period of time can only be equitable. It must be in writing and signed by the grantor.
Implied by Necessity
An easement will be implied by necessity if its existence is essential for any use of the dominant tenement to be made. E.g., in cases of landlocked land
Common intention of both parties
An easement will be implied by common intention where;
- The dominant land has been sold or leased for a specific purpose,
- The purpose is known to both parties, and
- The easement claimed is essential to achieve the common purpose.
The rule in Wheeldon v Burrows
- Only applies where the right being claimed would have been a grant to the claimant,
- The right must been enjoyed as a quasi-easement by grantor before the land was divided,
- The quasi-easement must have been continuous and apparent,
- The quasi-easement must be necessary for the reasonable enjoyment of the dominant land,
- The quasi-easement must be in use by the common owner at the date of the transfer/lease of the dominant land.
- Continuous:need not have been enjoyed constantly or incessantly but there must be some degree of permanence. It must not have been transient or intermittent.
- Apparent:there must be some clue as to the existence of the right from a careful inspection of the land. E.g., a track or a drain cover.
- Necessary for the reasonable use of the land:the right must enhance the land in some way.
s.62, LPA 1925
can only be used when
this a conveyance
Wright v Macadam
- Only applies where the right being claimed would have been a grant to the claimant,
- There must have been prior diversity of occupation of the dominant and servant tenements,
- An informal permission of licence must have been granted to the occupier of the servant land in some way,
- There must have been a conveyance (transfer by deed or legal lease) of the dominant tenement.
P&S Platt v Crouch
The court held in this case that s.62 also applied to quasi-easements which are are 'continuous and apparent' and implied them into the transfer when the land was first divided.
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