EASEMENTS II

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 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 INTENTION Peckham 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 FOR LEGAL 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 FOR EQUITABLE 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 )

EXTINGUISHMENT OF EASEMENTS METHODS INCLUDE 1.RELEASE (express or implied) 2.UNITY OF POSSESSION