easements methods of creation + definitions of types of easements

when is the only time an easement can be created at law per s1LPA

when the perosn benefitting from the easement possesses a fee simple absolute in possession or a term of years absolute. otherwise, easement equitable

consequence of an easement purporting to be created in perpetuity (‘for A’s life)

equitable easement

formalities for creating a legal easement

• created by deed per s52 LPA

• deed complies with s1 LP(MP)A

• to ensure priority protection, registered in a accordance with s27 LRA

reasons an easement may only be equitable?

• easement grantor only has an equitable estate form which to grant the easement (i.e. equitable fee simple absolute in possession from failure to register ownership after conveyance)

• when an easement is not perpetual or for a fixed term (‘for A’s life)

• contract for an easement per s2LP(MP)A because not executed by deed via s52 LPA; Walsh v Lonsdale, equity regards as done that which ought to have been done

• legal easement created but not registered in line with s27 LRA (unregistered easement not overriding per Sch 3 para 3 LRA)

definition of an implied easement of necessity

without which the property retained cannot be used at all and not merely necessary to the reasonable enjoyment of the property - Union lighterage v london graving dock company

implied easement of necessity: Titchmarsh v Royston Water Co. precedent

steep hill with possible steps case: land has to be completely inaccessible

implied easement of necessity: manjang v drammeh

accessible by river = accessible at all; no implied easement of necessity

implied easement of necessity: Nickerson v Barraclough precedent

the intention of the parties can be inferred depending on their plans for a plot of land.

implied easement of common intention: wong v beaumont property

basement restaurant case, court can imply intention to create an easement based off common intention of parties. here, agreed the rented land would eb used as a restaurant and in line with local regulations, would need to be ventilated properly in a way that required an easement.

what does common intention (in the scope fo implied easements) mean and not mean per Pwllbach Colliery v Woodman

it’s not what is common, convenient or usual; it is necessary for use and and enjoyment in a way contemplated by the parties beforehand.

burden on seller in the case of reservations to show mutual intention

implied grant easements: wheeldon v burrows precedent AND requirements for implied grant easement

Right to light workshop case. If parties want a reservation, it must be expressly implied in the deed conveyance of the land.

When dealing with a quasi-easement that has been conveyed to another, to get an implied grant easement must be able to prove:

• the transferor (or their agents) were using the quasi easement for the benefit of the land at the time of the transfer

• quasi easement continuous and apparent (drain cover, path, etc)

• reasonably necessary for the enjoyment of the land (not strict necessity)

implied grant easements wheeldon v burrows rule: wheeler v saunders precedent

house and barn case, 2 routes of access. easement not reasonably necessary as could use other path; simply convenient to use other one.

implied grant easements wheeldon v burrows rule: millman v ellis

layby case, use of layby not merely convenient, but made access to road safer. deemed reasonably necessary

implied easements via s62 LPA: what is the only type of easement this applies to?

implied grants NOT RESERVATIONS

do express grants need registered?

no per the operation of s62 LPA and 27(7) LRA; express easements must be though

what is the effect of s62 LPA and Graham v Philcox

• where there is a conveyance of land, it automatically carries with it all the rights and benefits that are attached to the land conveyed

• graham v philcox states any pre-existing easements benefiting the conveyed land will pass.

s62 LPA requisite for the upgrading of a permission to be upgraded into an easement per international tea shores?

• fulfillment of the ellenborough park criteria

• Prior to the conveyance of land, the ‘liberties, privilege, easements, rights and advantages’ must be exercised

• Formal conveyance made (deed, s52LPA and s1LP(MP)A)

• Diversity of occupation per Sovmots Investments OR continuous and apparent use per platt v crouch

• No express exclusion in conveyance; contrary intention cannot be inferred from surrounding circumstances per Browning v Jack

s62 LPA : wright v mcadams

coal shed case, renewal of lease gives permission to store coal, s62 conveyance implies legality

effect of transfer of dominant tenement in registered and unregistered land?

automatically transfers

transfer of a servient tenement in registered land is governed by which legislative provisions?

basic priority rule in s28 LRA and s29 LRA which determines whether the easement binds a purchaser fo the servient land

express legal easement legislation for creation registered land?

• s27(2)(d) LRA (to class an easement as legal and make it binding upon successor in title)

• to qualify as ‘overriding’ per Sch3 para 3 LRA, must be registered nad made legal per s27(2)(d) LRA

implied legal easement (necessity, common intention, implied grants per wheeldon v burrows or s62LPA), necessity for registration to bind a purchaser in registered land?

no, will override via sch3 para 3 LRA as long as they are obvious on a reasonably careful inspection or the purchaser has actual knowledge or alternatively have been exercised within 1 year of the day of the disposition.

process if an easement was overriding pre-200 LRA but wouldnt be considered such today in registered land?

yes, sch 12 para LRA

Protecting equitable easements in registered land?

requires entry of a notice on the register of title of the servient land in lie with s32 LRA. if not done so, may be defeated by a purchaser under s29 LRA.

unregistered land transfer of a servient tenement to protect equitable easement?

considered a class D(iii) land charge per s2 LCA and must be registered against the name of the grantor (servient owner).

interpretation of the 3 point test from wheeldon v burrows per Douglas (2015)

• should be understood to be alternative steps and function more to ‘cover all bases’ and courts should have discretion based on the facts of the given case.

• if an easement is obvious on inspection, it stands to reason a grantee would reasonably expect that this benefit would continue after the conveyance of land.

interpretation of the 3 point test from wheeldon v burrows per Millman v Ellis (layby case) and Wheeler v Saunders

both elements should be satisfied; cumulative (layby) AND they’re synonymous per Wheeler. If it is reasonably necessary it would accordingly be apparent.

interpretation of the 3 point test from wheeldon v burrows per Wood v Waddington

the emphasis should be focused more on the necessity of the easement compared to the apparentness of it.

interpretation of the 3 point test from wheeldon v burrows per Lord Wilberforce in Sovmots

The test is one of intention and shouldn’t be understood to be a strict test (in Sovmots the conditions fulfilled but no intention on the part of the grantor so claim failed)

interpretation of the 3 point test from wheeldon v burrows per Harpum (1977)

• limbs are cumulative indicators of the single underlying requirement that the right is necessary for the reasonable enjoyment of the land; 2 evidential routs for the same conclusion

• To treat them as alternatives would allow mere conveniences to be ruled as easements based on their obviousness and this would undermine the doctrine of genuine accommodation.