EASEMENTS

EASEMENTS

Proprietary Right - S1(2) LPA
1. Over one piece of land (the ST) for benefit of another (the DT)
  1. Set out in Re Ellenbrough Park
    1. Must be a DT and an ST, the owner of the DT will have a right of way over ST
      1. The right must accommodate the DT - Must confer a benefit on the DT not a personal advantage to its current owner
        The DT & ST must be owned by different people
        Easement must be capable of forming the subject matter of a grant
        Must be a capable grantor
        Must be a capable grantee
        The right must be sufficiently definite - cannot be so wide or imprecise that it excludes the reasonable use of the ST
        Right must not amount to exclusive use and no positive undertaking can be required from ST
        COPELAND v GREENHALF - Virtually a claim to possession, cannot be an easement
        Although - cf with Wright v McAdam where s62 LPA converts a licence into an easement
        Cannot have an easement over your own land
        Does it increase the value and marketability of the land? from HILL v TUPPER
        Must be sufficiently proximate with each other
      2. Both must be defined at time easement is acquired
CREATION can be by:
1. Expressly created by deed s52 LPA
  1. For registered land must also be registered under s27 LRA
2. Created by Implication
  1. For necessity - ie if landlocked without it.MANJANG v DRAMMAH
    1. NB must be completely locked, if another inconvenient route, no necessity
  2. If there was - Common Intention - ie Essential for the use of the land for a purpose mutually intended. WONG v BEAUMONT (restaurant in basement case)
3. Quasi Easements - The rule in WHEELDON v BURROWS
  1. If land sold and owner uses a shortcut over land retained to get to the sold part, new owner would assume they could use the shortcut to.
    1. Conditions are:
      1. Continuous and apparent use - must be able to see it on inspection of the property
      2. Must be necessary to the enjoyment of the dominant land - different to absolute necessity
      3. The shortcut must be in use immediately before the grant is made
4. S62 LPA - applies to failed grants only
  1. Can convert a licence into an easement - WRIGHT v Macadam
    1. Must be a conveyance
5. Prescription - need to show 20 years continuous use as of right - ie no secrecy
Binding on third parties?
1. Unregistered land
  1. If legal - created by deed or by implication - binds the world
    1. If equitable - ie no deed, then must be protected by land charge or won't bind a BRP for Value Without Notice
2. Registered Land
  1. If legal - binds the world. Express creation needs a deed and registration.
    1. Implied easements are legal and have over riding status under sch3 LRA 02 (providing known to purchaser/obvious on inspection/used within last year)
      1. If equitable - ie no deed/not registered, must be protected as a notice S32 LRA or will not bind purchaser for value. Equitable easements do not have over riding status

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	Created by costafortune almost 11 years ago