Easement acquisition
- Created by: jesskeayy
- Created on: 05-05-19 12:35
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- Easements- acquisition
- Acquired by law and equity, land registration
- Acquisition of legal & equitable easements:
- 1. express grant of easements incl. registration. 2. implied grant of easement. 3. prescriptive acquisition of easements
- Law and equity:
- Equity originally conceived as a corrective system of justice
- Legal rights created by compliance with stat. requirements of doc formality or registration
- Generated by informal transactions, implication from circumstance and obligations
- MAXIMS: 1. regard to substance rather than form. 2. won't suffer a wrong to go without remedy. 3.must come with clean hands
- Creation: created by grant or reservation. 1. expressly, 2. impliedly, 3. prescriptively
- Express: grant set out expressly in deed of transfer of freehold ownership, or in a lease
- Registration requirements: 1. property estoppel, 2. statute- permitting access for maintenance
- Implied: easement of necessity arises when it's impossible to make use of tenement without easement
- Common intention: i.e. transferor and transferee had a common intention in relation to transfer, requiring an easement
- Wheeldon v Burrows
- Common intention: i.e. transferor and transferee had a common intention in relation to transfer, requiring an easement
- S.62 Law of Property Act 1925
- Registration: overriding interest in unregistered interest in land overriding the register
- Land subject to overriding interest being sold- purchaser is bound by overriding interest
- Prescriptive: acquired by: 1. claim made by one fee simple owner against another fee simple owner. Prescriptive claim against a tenant will fail
- 2. Must be a continuous user. Not clear how frequent the user must be
- User has been as of right: Nec Vi, Nec Clam, Nec Precario
- Any user for 20 years or more was indicative of the user since 1189. Could be defeated by showing user didn't take place in 1189
- Lost modern grant: 20 years' uninterrupted will be treated as evidence a grant must've taken at some point prior to the 20 years. Doc has been since lost
- Angus v Dalton
- Tehidy Minerals v Norman
- Angus v Dalton
- Lost modern grant: 20 years' uninterrupted will be treated as evidence a grant must've taken at some point prior to the 20 years. Doc has been since lost
- Prescription Act 1832: only available in relation to litigation that has already begun
- Act provides evidence of user as of right without interruption for 20 years can't be defeated by showing it begun after 1189
- Easements of 40 years or more uninterrupted will be absolute and indefensible (s.2)
- Bakewell v Brandwood: houses built around common without direct access to public roads. No access ever permitted to drive across the land
- Bakewell bought the land and claimed against the people using his land for access. s.193(4) LOPA 1925
- Given that s.193(4) prohibits driving of vehicles on common land without lawful authority, Owners of houses could not acquire prescription
- Hanning v Top Deck Travel Group
- Given that s.193(4) prohibits driving of vehicles on common land without lawful authority, Owners of houses could not acquire prescription
- Bakewell bought the land and claimed against the people using his land for access. s.193(4) LOPA 1925
- Express: grant set out expressly in deed of transfer of freehold ownership, or in a lease
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