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A more recent version of these How Do You Create An Easement notes – written by Oxford students – is available here.
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How do you create an easement?
Express creation
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LP(MP)A 1989 s.2(1)Deed required in order to gain a legal interest in land
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Writing required in order to gain equitable interest o Entry of notice required for Servient land (presuming registration) o Easement also has to be registered to title of Dominant land
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These easements transfer automatically on transfer of the Dominant land o St Edmundsbury & c v Clark [1975]:
? And there is no problem of transfer just because only part of the Dominant land is transferred. Prescription
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Land must have been used for 20 years by same user
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And use must not have come from force, stealth or permission - only acquiescence Implied Easements
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These are implied into a deed of conveyance or lease and have the same effect of expressly granted easements o 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
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When both plots sold, implication takes place if both plots sold at same time (not necessarily conveyance together) o Each purchaser gets implied grants against each other. Implied Reservation
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This is when the grantor reserves some rights to himself having transferred the plot of land to the grantee o 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.
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Thesiger LJ: o 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.
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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.
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Evershed MR: o 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
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Will any rights be reserved over granted land. o However, it can be proved where:
? Reservation necessary in narrow sense
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