EASEMENTS II

RESERVATION OF AN EASEMENT

RESERVATION OF AN EASEMENT

• Jan sells part of her land to Philip

• Jan RESERVES a right to park on Philip’s land

JAN’S CAR

PHILIP’S LAND

JAN’S LAND

RESERVATION OF AN EASEMENT

EXPRESS

IMPLIED

1. NECESSITY

2. COMMON INTENTION

NECESSITY

Sweet v. Sommer 2004 4 All ER 2

Was retained land landlocked where access was possible

by demolishing a building on the seller’s retained land?

Adealon Intrntl Proprietary Ltd v Merton LBC [2007]1 WLR

An easement of necessity where some of the surrounding

land belongs to a third party?

ADEALON (2)

COUNCIL (1)

High Path – public highway(providing access to yellow land)

Major traffic road – no access

COMMON INTENTIONPeckham v Ellison [2000] 79 P&CR 276

A FURTHER METHOD OF ACQUISITION OF AN EASEMENT:

PRESCRIPTION

- SEE NOTES ON BLACKBOARD

1.When can a right be passed on to a new owner of the dominant land?

2.When can the easement be enforced against a new owner of the servient land ?

DOES THE BENEFIT OF AN EXISTING EASEMENT TRANSFER

ON A SALE OF THE DOMINANT TENEMENT?

For example :-

Jan’s car

PHILIP’S LAND – servient tenement

JAN’S LAND – dominant tenement

SOLD TO

PAT

DOES PAT GET THE BENEFIT OF THE EASEMENT OF PARKING?

TRANSFERRING THE BENEFIT OF AN EXISTING EASEMENT

•Express

•Implied under s.62 LPA 25

‘A conveyance of land shall be deemed to include and shall…operate to convey with the land, all liberties, privileges, easements, rights & advantages whatsoever, appertaining…to the land, or, at the time of conveyance,…enjoyed

with…the land.’

•S.62 applies to both grants & reservations

DOES THE BURDEN OF AN EXISTING EASEMENT

TRANSFER ON SALE OF THE SERVIENT TENEMENT?

For example:-

IS PAT SUBJECT TO THE EASEMENT OF WAY?

PHILIP’S LAND- dominant tenement JANS LAND

- servient tenement

SOLD TO

PAT

LEGAL OR EQUITABLE STATUS?

REQUIREMENTS FORLEGAL STATUS

1. DURATION

2. MODE OF CREATION – BY DEED Implied easements (including under s.62 LPA 25) are

treated as if they had been created in the purchase deed

3. EASEMENTS EXPRESSLY CREATED out of registered land MUST BE REGISTERED (s.27 LRA 2002)

Must satisfy the requirements for an enforceable contract under s.2 LP (MP) A 1989

REQUIREMENTS FOREQUITABLE STATUS

QUESTIONS

Are the following easements legal?

1. An express right of way for life granted by deed.

2. An express right of way granted for 20 years

3. An implied right of way granted for 10 years

ENFORCEMENT AGAINST A BUYER OF A REGISTERED SERVIENT TENEMENT IN

REGISTERED LAND

REGISTERED LAND

LEGAL EASEMENTS

• Express legal easements – s.27 LRA 2002

• Implied legal easements – see next slide

REGISTERED LAND

LEGAL EASEMENTS cont’d

An Implied legal easement OVERRIDES IF the conditions in

Sch.3 para 3 LRA 2002 are met:-

• the buyer has actual knowledge of it; or

• the easement would be obvious on a reasonably careful inspection of the land; or

• the easement has been exercised within the period of one year before the disposition;

REGISTERED LAND

EQUITABLE EASEMENTS

Equitable easements must ALWAYS be protected by entry of a NOTICE on the charges register

ENFORCEMENT IN UNREGISTERED LAND

UNREGISTERED LAND

LEGAL EASEMENTS

Bind the world

EQUITABLE EASEMENTS

D(iii) land charge (if created on or after 01.01.26)

EXTINGUISHMENT OF EASEMENTS

METHODS INCLUDE1. RELEASE (express or implied)2. UNITY OF POSSESSION