45 Questions
Which statutory provision states that an easement granted forever is capable of being legal?
Law of Property Act 1925, s 1(2)(a).
Which one of these is a negative easement?
a right to light
What is the correct term for a benefit which confers on the holder a right to take something from the land? e.g. fish or minerals
a profit a prendre
Part of A’s land is sold by A to B. In the transfer deed, there is a right of way for A's retained land over the land sold to B. Which phrase best describes this situation?
an express reservation
Part of C’s land is sold by C to D. In the transfer deed there is no right mentioned for D use the drain which runs under C's land which was used by C for the benefit of the land sold to D before the land was divided. Which phrase best describes this situation?
implied grant
For an easement to be created by prescription, how many years of uninterrupted user would the claimant need to demonstrate?
20
A prescriptive easement must be exercised ‘nec vi, nec clam, nec precario’ - without force, without secrecy and without permission.
If a right of way is exercised for 20 years by a freeholder against a freeholder but in breach of a sign on the servient land saying "private, for use of patrons only" will the right have been acquired by prescription?
No, the right has been exercised with the use of force
Can a tenant acquire an easement by prescription if it exercises a right without force, secrecy and permission for a 20 year uninterrupted period?
No
The freehold owner of a property is concerned about building works taking place on neighbouring land. The building works will block the sunlight to the garden.
Could the freehold owner have an easement for a right to light in the circumstances?
No, there is no defined aperture in a garden
Which case sets out the criteria which must be met for a right to be capable of being an easement?
Re Ellenborough Park
Which one of these is not one of the criteria set out in re Ellenborough Park as essential for a right to be capable of an easement?
The use of the right must not amount to exclusive possession of the servient land.
In the case of P&A Swift Investments Ltd v Combined English Stores Group plc, Lord Oliver sets out a detailed test for establishing whether a right accommodates the dominant tenement. Which one of the following options is NOT part of that test?
The right should benefit the dominant land owner even if they were to sell the dominant land
In which of the following cases was a right to use a sporting and leisure facilities judicially recognised as being capable of being an easement?
Regency Villas v Diamond Resorts
What types of rights may in future be recognised as new types of easements?
Positive easements only
Which of the following options correctly describes the disqualifying factors which will prevent a right from being an easement?
If the right grants exclusive possession to the dominant land owner, requires payment by the servient land owner or requires permission from the servient land owner everytime it is exercised, it will not be an easement
Which of the following is the most accurate summary of the 'ouster principle'?
The easement must not leave the servient owner with no reasonable use of the servient tenement.
Which of the following rights will be disqualified because of exclusive possession?
A right to store in part of the shed where the servient land owner is prevented from accessing the shed
A man grants a woman a right of way over their lane. The lane is in a very poor state of repair, making it almost impossible to drive across.
Which one of the following statements is correct?
The man need not repair the lane but must allow the woman access to do the repairs
Which is the definition of a legal easement?
To be legal, an easement must be granted it reserved for the equivalent of a freehold or leasehold term
Which statutory provision sets out the type of document which must be used to create an express legal easement?
Law of Property Act 1925, s 52
What formalities must be met in order to create a legal easement of 3 years?
Deed + registration
If a right fails as an express legal easement for lack of formalities, what is the position?
The right may be recognised as an equitable easement if it is in writing, signed by both parties and contains all the agreed terms.
What are the correct formalities to create an easement for an uncertain term?
It must be created in writing, signed by the grantor only.
Which of the following rights can be acquired by necessity?
Rights of way
Which is the most accurate definition of ‘necessity’ in the context of easements implied by necessity?
‘Absolute necessity’: the land cannot be used at all without the easement
Sweet v Sommer softened the harsh requirements of ‘necessity’ for easements implied by necessity. Which of these statements accurately states how the case expanded the definition?
It recognised a right of way by vehicle as being implied by necessity, even though there was already a right of way on foot and the land was not inaccessible.
For acquisition by common intention to work, what does there need to be?
A specific common purpose in respect of use of the land that cannot be achieved without the easement
Which one of the following statements is NOT a requirement for an easement to be implied by the common intention of the parties?
The original parties must have been landlord and tenant.
In which situation will acquisition by common intention NOT work?
A right of storage claimed by a tenant who uses the land as a restaurant
What types of easements can be implied by the common intention of the parties?
Grants and reservations
What type of rights can be implied as easements under the rule in Wheeldon v Burrows?
Grants only
What is the essential pre-requisite for the operation of the rule in Wheeldon v Burrows?
There must be a quasi-easement exercised for the benefit of the land now owned by the claimant.
One of the criteria for the rule in Wheeldon v Burrows to operate is that the right must be necessary for the reasonable enjoyment of the land. Which of these statements is the best definition of ‘necessary’ in this context?
The right is necessary for the convenient and comfortable enjoyment of the land.
Into what type of documents may easements be implied by the rule in Wheeldon v Burrows?
Deeds or contracts
Which of the following is NOT one of the criteria which is needed for Wheeldon v Burrows to imply an easement into a document?
The right must touch and concern the dominant land.
What is the most accurate statement of the ‘ordinary operation’ of Law of Property Act 1925, s 62?
S 62 passes the benefit of existing easements to a new owner of the dominant land.
What type of rights can be implied as easements under Law of Property Act 1925, s 62?
Grants only
Into what type of documents may easements be implied by Law of Property Act 1925, s 62?
Deeds only
Which one of the following statements is correct in stating the situations when Law of Property Act 1925, s 62 may apply to imply an easement?
The section operates in situations where land is sold or let for the first time, and in situations where part of the land has previously been occupied by a tenant but the lease is renewed or that land sold.
Land is divided for the first time, by transfer deed. A right of way is claimed by the buyer of the land under s 62 LPA 1925.
Which statement best explains if the buyer will be successful in the circumstances?
The buyer will be successful providing the right is continuous and apparent
Which statutory provision passes the benefit of an existing easement to a new dominant owner, thereby enabling that person to enforce the easement?
Law of Property Act 1925, s 62
Which one of the following registration processes is needed to make an express legal easement over registered land enforceable?
Substantive registration
Which one of the following registration processes is needed to make an implied legal easement enforceable?
No registration is necessary it will be an overriding interest (providing the conditions are met)
If an equitable easement is not protected by a Notice in the Charges Register of the servient title in accordance with Land Registration Act 2002, s 32, what effect does that have on a new owner of the servient land?
The easement is not binding on a purchaser for value of the servient land
An implied legal easement is an overriding interest: Land Registration Act 2002, Schedule 3, paragraph 3 provided that one of the conditions set out in paragraph 3 are met. Which one of the following is not a condition in paragraph 3?
The easement must be held by someone who is in actual occupation of the servient land.
Study Notes
Creation of Easements
- An easement granted forever is capable of being legal under Section 62 of the Law of Property Act 1925.
Types of Easements
- A negative easement is a right that restricts the servient landowner's use of their land.
- A profit à prendre is a benefit that confers on the holder a right to take something from the land, e.g., fish or minerals.
Easements by Prescription
- To create an easement by prescription, 20 years of uninterrupted user is required.
- A prescriptive easement must be exercised ‘nec vi, nec clam, nec precario’ - without force, without secrecy, and without permission.
Easements by Implication
- The case of Re Ellenborough Park sets out the criteria which must be met for a right to be capable of being an easement.
- The P&A Swift Investments Ltd v Combined English Stores Group plc case sets out a detailed test for establishing whether a right accommodates the dominant tenement.
Statutory Provisions
- Section 62 of the Law of Property Act 1925 sets out the type of document required to create an express legal easement.
- To create a legal easement of 3 years, a deed is required.
- If a right fails as an express legal easement for lack of formalities, it can still be acquired by prescription.
Implied Easements
- Easements can be implied by necessity, common intention, and the rule in Wheeldon v Burrows.
- Necessity is defined as a situation where the land cannot be used or enjoyed without the easement.
- The rule in Wheeldon v Burrows implies an easement when it is necessary for the reasonable enjoyment of the land.
Registration of Easements
- Section 62 of the Law of Property Act 1925 passes the benefit of an existing easement to a new dominant owner.
- An express legal easement over registered land must be registered to be enforceable.
- An implied legal easement must be registered as a Notice in the Charges Register of the servient title to be enforceable.
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