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Law Notes Land Law Notes

How Do You Create An Easement Notes

Updated How Do You Create An Easement Notes

Land Law Notes

Land Law

Approximately 987 pages

Land Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB land law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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How do you create an easement?

Express creation

  • LP(MP)A 1989 s.2(1)Deed required in order to gain a legal interest in land

  • Writing required in order to gain equitable interest

    • Entry of notice required for Servient land (presuming registration)

    • Easement also has to be registered to title of Dominant land

  • These easements transfer automatically on transfer of the Dominant land

    • St Edmundsbury & c v Clark [1975]:

      • And there is no problem of transfer just because only part of the Dominant land is transferred.

Prescription

  • Land must have been used for 20 years by same user

  • And use must not have come from force, stealth or permission – only acquiescence

Implied Easements

  • These are implied into a deed of conveyance or lease and have the same effect of expressly granted easements

    • Implication will take place where the grantor owns two plots and sells or leases one of them to the grantee

      • Vendor (Grantor) will look for implied reservation

      • Purchaser (Grantee) for implied grants

  • When both plots sold, implication takes place if both plots sold at same time (not necessarily conveyance together)

    • Each purchaser gets implied grants against each other.

Implied Reservation

  • This is when the grantor reserves some rights to himself having transferred the plot of land to the grantee

    • Must be express

      • Wheeldon v Burrows (1879): X sells land to X, then workshop facing land to Y. Y attempts to stop X building and blocking his light.

        • Thesiger LJ:

          • Rule 2 = if the grantor intends to reserve any right over the tenement granted,

            • it is his duty to reserve it expressly in the grant.

              • Only exception is where easement has to be reserved by necessity

      • Re Webb’s Lease [1951]: L granted tenancy to T. Later granted lease to T, including outer walls. On outer walls = sign advertising L’s business. L had not expressly reserved right, tried to imply it.

        • Evershed MR:

          • Fact that T might have knowledge of L’s intentions to reserve rights is irrelevant

            • Only if L expressly reserves right, or proves that right is one that must be reserved through necessity

              • Will any rights be reserved over granted land.

    • However, it can be proved where:

      • Reservation necessary in narrow sense

        • i.e. Remaining land of Grantor cannot be used without the easement (e.g. land locked so needs right of way)

          • but not if any way of accessing even if inconvenient.

      • Reservation necessary in wider sense

        • Wong v Beaumont Property Trust Ltd [1965]: Lease of cellars was for restaurant use – when restaurant expanded, needed ventilation system fitted.

          • Lord Denning MR:

            • The law will imply a grant or reservation of such easements

              • as may be necessary to give effect to the common intention of the parties granting

                • with reference to the manner/ purposes for which the land granted is to be used.

            • But essential that the parties should intend that the grant should be used in some definite manner – not just one which may involve this definite use.


Implied Grant

  • Wheeldon v Burrows [1879]:

    • Thesiger LJ: Implied grants of easements will occur where (quasi) easements are

      • Continuous and apparent

        • E.g. rights to light, drainage, support

        • Borman v Griffith [1930]:

          • Maugham J:

            • Where 2 properties belonging to X about to be granted have plainly visible road existing over the one for the apparent use of the other,

              • and that road necessary for reasonable enjoyment of the granted property

                • a right to use the road will pass with the quasi-dominant tenement, unless that right is excluded:

            • Fact that not “continuous” irrelevant where obvious right necessary for reasonable enjoyment of land.

        • Smith: seems to overlook “continuous” requirement as unnecessary here

          • Thus, available if continuous or where feature on Serv land that indicates there is a right

      • “Or” necessary for reasonable enjoyment (or both?)

        • Smith: much weaker than “necessity” required for implied reservations

        • Goldberg v Edwards [1950]: House can be accessed via L’s house or outside passage. L allows X to use house passage. L leases house to Y, Y refuses to allow passage thru house.

          • Evershed MR:

            • Implied grant only applies where right of way necessary for reasonable and convenient enjoyment of property

              • Here, right of way not at all necessary for reasonable enjoyment b/c alternative pathway just as good.

      • Time of exercise

        • If right exercised in recent past, but not at time of grant

          • Then this should be sufficient and no need to take literally.

  • Limits on Wheeldon v Burrows rule:

    • Contrary intention

      • Squarey v Harris-Smith [1981]: contract contained standard term that excluded claim to right of way, even though neither party had not given clause any thought.

        • Held Test will yield where evidence of contrary intention to the granting of rights – thus standard term sufficient to rebut granting.

    • Diversity in occupation?

      • Kent v Kavanagh [2006]:

        • Chadwick LJ:

          • Wheeldon v Burrows easements are confined, in their application, to cases in which, by reason of the conveyance (or lease),

            • land formerly in common ownership ceases to be owned by the same person.

      • Smith:

        • Odd that this should be the case –

          • Wheeldon is common law principle predating s.62, strange that can’t apply to cases of diversity

          • Several cases discuss both tests implying that both have application to diversity

          • S.62 doesn’t apply to contracts – if Wheeldon has no application to cases of diversity

            • This implies that no rights can be implied into contracts where diversity = perverse result.

    • Do we need both strands to be satisfied?

      • Smith: test of necessity derives from old idea that grantor shall not derogate from grant

      • Test of continuous and apparent = from French Law

        • Unfortunately, Thesiger LJ achieves a formulation that incorporates both tests...

          • Perhaps solution = that both strands = guidelines as to when denial of easement will deny grant

            • Thus, continuous yet frivolous grants shouldn’t be applied if not...

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