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W301 UNITS 14-15: EASEMENTS

By johirst

Added: May 16, 2011 15:44:59

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  • baghdad baghdad johirst as someone on the W301 course - obviously - a big thank you for taking the time to do all this work, With other pressures I am nowhere near revising but when I come to it, these maps will be a great help...thanks again!!
  • Outline

W301 UNITS 14-15: EASEMENTS

W301 UNITS 14-15: EASEMENTS
1 Definition
1.1 a right enjoyed by a person over his neighbour's property
1.2 proprietary interest in land
1.3 cannot exist 'in gross'
1.3.1 Rangeley v Midland Railway Co (1868) 3 Ch App 306
1.4 contrast with licence = mere permission
1.5 entitled to a privilege but not a profit
1.6 courts will not allow unlimited easements
1.6.1 Hunter v Canary Wharf Ltd [1997] 2 All ER
1.7 can have positive and negative easements
2 Characteristics
2.1 Must be a dominant and servient tenement
2.2 Easement must accomodate the dominant tenement
2.2.1 must show it is connected with the normal enjoyment of the property
2.2.2 must be sufficiently connected with the property
2.3 Dominant and servient owners must be different people
2.3.1 must not be owned and occupied by the same person
2.3.2 can have 'quasi-easements'
2.4 Right must be capable of forming the subject matter of a grant
2.4.1 must be capable grantor and grantee
2.4.2 right must be sufficiently clear
2.4.3 must not deprive owner of too many rights
2.4.3.1 Copeland v Greenhalf [1952] Ch 488
2.4.3.2 Miller v Emcer Products Ltd [1956] Ch 304
3 Protection
3.1 over-riding interest under para 3 sch 3 LRA 2002
3.1.1 Express grant
3.1.1.1 Legal easement over-rides
3.1.1.2 If not registered, not legal and does not over-ride
3.1.2 Implied easement of necessity
3.1.2.1 over-rides if ...
3.1.2.1.1 obvious on reasonable inspection of land
3.1.2.1.2 or had actual knowledge
3.1.2.1.3 or can prove right has been exercised in year prior to sale
3.1.2.1.4 NB Legal easement but does not have to be registered
3.1.3 Prescriptive easement
3.1.3.1 Legal easement over-rides
4 Extinguishment
4.1 Express release by deed
4.2 Purchase of dominant and servient tenements by same owner
4.3 Abandonment
4.3.1 Moore v Rawson (1824) 3 B&C 332
5 Acquisition
5.1 Express grant or reservation
5.1.1 can be legal if...
5.1.1.1 equivalent to fee simple absolute in possession or term of years absolute
5.1.1.2 created by deed
5.1.2 takes effect ...
5.1.2.1 on completion if land unregistered
5.1.2.2 on registration if land registered
5.1.2.2.1 entry in property register of dominant
5.1.2.2.2 entry on charges register of servient
5.2 Implied grant or reservation on sale of part
5.2.1 Wheeldon v Burrows (1879) 12 ChD 31
5.2.1.1 quasi-easement will pass with sale of part if...
5.2.1.1.1 continuous
5.2.1.1.2 apparent
5.2.1.1.2.1 requires some feature apparent on inspection of the servient tenement
5.2.1.1.3 necessary for the reasonable enjoyment of the property
5.2.1.1.4 in use as a quasi-easement by the owner at the time of the grant for the benefit of the part granted
5.2.2 General rule that person must not derogate from his grant
5.2.2.1 Exceptions
5.2.2.1.1 Easement of necessity
5.2.2.1.1.1 can apply to either party
5.2.2.1.1.2 Corp of London v Riggs (1879-80) LR 13 ChD 798
5.2.2.1.2 Necessary to give effect to common intention of the parties
5.2.2.1.2.1 Re Webb's Lease; Sandom v Webb [1951] Ch 808
5.2.2.1.2.2 Pwllbach Colliery v Woodman [1915] AC 634
5.2.3 S62 LPA 1925
5.2.3.1 'liberties, privileges, easements, rights and advantages' pass on conveyance
5.2.3.1.1 NB conveyance includes lease
5.2.3.2 can transform licence into easement
5.2.3.2.1 Wright v Macadam [1949] 2 KB 744
5.2.3.3 must be diversity of occupation at the time
5.2.3.3.1 Long v Gowlett [1923] 2 Ch 177
5.3 Prescription
5.3.1 Dalton v Angus (1881) 6 App Cas 740
5.3.1.1 A doing something on B's land
5.3.1.2 A not having right to do so
5.3.1.3 B knowing that A is doing it
5.3.1.4 B being able to prevent A from doing it
5.3.1.5 B failing to do so for a sufficiently long time
5.3.2 Common law
5.3.2.1 user from time immemorial
5.3.2.1.1 Statute of Westminster I
5.3.2.1.1.1 must have commenced before 1189
5.3.2.1.2 remote antiquity = during a lifetime
5.3.2.2 doctrine of lost modern grant
5.3.2.2.1 period of 20 years
5.3.3 Prescription Act 1832
5.3.3.1 s2 PA 1832
5.3.3.1.1 after 20 years ...
5.3.3.1.1.1 cannot be defeated by proof that commenced after 1189
5.3.3.1.2 after 40 years ...
5.3.3.1.2.1 becomes absolute and indefeasible
5.3.3.2 s4 PA 1832
5.3.3.2.1 but must be 'next before action'
5.3.3.2.1.1 heavily criticised
5.3.3.2.2 any interruption to the right ignored if less than one year
5.3.4 Acts must be 'as of right'
5.3.4.1 without force
5.3.4.1.1 i.e. no objection raised
5.3.4.2 without secrecy
5.3.4.2.1 i.e. possible for owner to discover
5.3.4.3 without permission
5.3.5 Can only be acquired by one fee simple owner against another
5.3.5.1 Kilgour v Gaddes [1904] 1 KB 457
5.3.6 Right to light
5.3.6.1 absolute and indefeasible after 20 years
5.3.6.1.1 s2 PA 1832
5.3.6.2 only in respect of buildings
5.3.6.3 must show ...
5.3.6.3.1 access to light
5.3.6.3.2 and use made of it
5.3.6.4 does not have to be 'as of right'
5.3.6.5 sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment or beneficial use and occupation of the building
5.3.6.5.1 City of London Brewery Co v Tennant (1873-74) LR 9 Ch App 212
5.3.6.5.2 takes account of burden on servient tenement