[FREE] Easement Exam Questions And Answers
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Easements Mock exam question
Question Jeremy owned the registered freehold title of Oakacre, a large house with an extensive garden. Jeremy had rented out a self-contained apartment within Oakacre to Bethany and, as a personal favour, he allowed Bethany to use the gardens for recreation. Bethany also parked her car on the driveway. Jeremy has now decided to turn his garden into a tennis court, and has therefore told Bethany that she can no longer use the garden. Furthermore, earlier this year Jeremy decided that he needed a garage. He therefore obtained planning permission for, and then built, a new double garage on his land.
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The only means of vehicular access to the garage is over the driveway, and since completion of the garage, Jeremy has prevented Bethany from parking her car on the driveway. Jeremy is delighted with the new garage, but a neighbour is claiming that it prevents her from using a shortcut across his garden to get to a nearby park. The neighbour has told Jeremy that she has been using the shortcut regularly since she bought her house in the mids. Jeremy tells you that he had noticed her doing this, but did not object because he could not be bothered. Advise Bethany and the neighbour whether they have any grounds for complaint against Jeremy. Support your answer with relevant case law and statute. The courts have developed a four limb test, which comes from the case of Re Ellenborough Park: There must be a dominant and servient tenement — this means there must be two pieces of land.
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One must benefit from the right over the burdened land, which is the name given to the servient tenement. The right must accommodate the dominant tenement — This essentially means that the right must benefit the dominant land, and not be a merely personal right. The dominant and servient tenements must be owned by different people — This simply means that one person cannot own both pieces of land to create an easement.
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They may have a quasi — easement, but cannot have an easement is they own both pieces of land. The right must be capable of forming the subject matter of a grant — This essentially means that the right must be specific, relate to land and be capable of being condensed into writing to form a deed. In the case of Bethany using the gardens for recreation: The dominant land is being leased to Bethany and is the self contained apartment in Oakacre. The servient land is owned by Jeremy and is Oakacre. The right must accommodate the dominant tenement, which means the right must benefit the land as in Moody v Steggles and not be a purely personal right as in Hill v Tupper. In this scenario the dominant and servient land have proximity as the dominant land is a self contained apartment. The right could be personal though, in Re Ellenborough Park the right to use a communal gardens was accepted as an easement, but this added the value of using a garden to a flat that had no access to one.
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I do believe that this right would enhance the land overall for any owner of the land because of the recent case of Regency Villas Title Ltd v Diamond Resorts Europe Ltd [] EWCA Civ where the court focussed on whether the utility of the dominant tenement would be improved by the right. Clearly Jeremy and Bethany are different people, which satisfies the third limb of the test. The land is the gardens of Oakacre, which is very specific and not vague. The easement will be for Bethany to use the gardens for recreation. There is nothing to suggest Jeremy would have to spend any money and is similar to already existing easements, as in Re Ellenborough Park. The right to use a communal garden is capable of becoming an easement because it satisfies the test above, and is similar to those easements that already exist.
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The right must accommodate the dominant tenement. The right to park your car on a driveway would add a benefit to the land, but there is the risk that the right becomes too excessive and amounts to exclusive possession. Batchelor v Marlow has produced a substantial interference test which has been criticised in the case of Montcrief v Jameson. This case proposed that the test should be whether the servient owner retains overall control of the land.
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Despite these criticisms Virdi v Chana has confirmed Batchelor v Marlow, and the test is whether the parking interferes with substantially the entirety of the land. The right to park has been recognised and validly created in the case of Hair v Gillman because the land had enough space for four cars, and only one space was used. The right must be capable of forming the subject matter of a grant. In this situation Jeremy has the capacity to grant the easement over his driveway. The land is specified to be the driveway, which is clear and not vague. The right is also similar to easements already created as in Hair v Gillman. The next stage of this question is to determine whether these rights have been acquired. In order to do this there are several different methods available. From the question, we can see that there has not been a clear express grant of an easement following the requirements of it being made by deed in The law of Property Act S Therefore we have to look at the types of implied grant available.
Easement Exam Questions And Answers
This is because S62 LPA has the effect of turning licenses into easements upon the transfer of land. The law of Property Act 62 operates to convert a license into an easement upon the transfer of land, this provision can be expressly excluded in the contact of sale, but there is no evidence of this. Jeremy cannot have his tennis court until Bethany leaves when he can possess the land again and remove the easement through unity of sesin. The fact are similar to the case of Wright v Macadam or International Tea Stores, where licenses were upgraded. The next issue is whether the shortcut has been acquired by prescription. There are three requirements for this to happen: The easement must be over freehold land Must be for a minimum of 20 years uninterrupted use The use must be as of right As of right encompasses use without force, without secrecy and without permission. Once these requirements are met the next stage is to look at whether the servient owner has acquiesced to the right.
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This can be shown in three ways, which comes from the case of Dalton v Angus Shields: A knowledge of the act done The power to stop those acts or take legal action The abstinence to use that power. If the servient land owner has the power, but fails to take any action then the right will become an easement after 20 years of uninterrupted use. In this situation the neighbour has been using the shortcut since , this means that she has been using it for over 20 years, and she is the freehold owner of her land. The neighbour also never had permission to use the shortcut, unlike in Green v Ashco. The Prescription Act S2 provides two kinds of prescription, however in this situation the shorter period of time is relevant.
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This act will prescribe an easement where there has been 20 years uninterrupted use for a year or more and the user must be as of right. The neighbour has been using the shortcut as of right, which indicates that the right will be prescribed as an easement and the neighbour will be able to continue using the right of way. Share this:.
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See Land Law, Section 8. Answer Plan: a Is this right capable of being an easement? A right to pass and re-pass along a privately owned road, or across privately owned land is one form of easement. But a public right of way is not an easement because there's no dominant tenement taking the benefit. International Tea Stores Company v Hobbs It was held that the use of the landlord garden for his own enjoyment could not exist as an easement because it was merely the right to walk at will.
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It was held that an easement cannot exist as an incorporeal hereditament unless and untill they are both a dominant and servient tenement in ownership. J Paul baker. Wright V Macadam : A tenant was allowed to store her coal in a shed on the landlord's land. This was upheld as an easement although on the facts tha the landlord would not have access to the shed at all. Compare to this case is the case of Grigsby V Melvile : The claimant had a right to unlimited storage within a celler beneath his neighbours property and it was held that this could not be an easement because it was a claim to beneficial ownership. License A license cannot have an easement but a tenant under a lease can have an easement, even against land retained by his landlord.
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A license can never bind a third party purchaser, whereas a properly created legal easement can be binding on third parties. Hill V Tupper; The claimant had a lease of an area that fronted on to a canal. It was held that the right was no more than a license as it did not enhance the enjoyment of the land but merely incidental to the business run by the claimant. Purchaser and Third Party Under s. These rights are refere to as quasi-easement and can be enforced by the purchaser. The rule can be applied whether the land is held on freehold or leasehold. In many city and town centres the buildings are physically joined to each other, by a party wall, so as to mutually support each other. If one such building were to be demolished it could cause at least partial collapse of its neighbour.
Life with LLB Law.: Answering Problem Questions on Easements: Rights over neighbouring land.
The remaining building has a right of support from the demolished building, and the owner of the adjoining land owes a duty of support to the remaining building. Thus it is necessary for the owner who demolishes his building to provide for the continued support of the remaining building on neighbouring land. The same right of support and duty of support applies if ground is removed too close to a neighbouring building. The right of support can also apply to ground as distinct from a building that is in danger of collapse as a result of excavation on neighbouring land. Thus a right of support also exists in the case of retaining walls that coincide with a property boundary. If you wish to demolish a building that has a party wall, or if you own the building next door to the proposed demolition, consult a chartered building surveyor for advice before the start of any work on the building. Right to Light Rights to light can be a complicated area. In the absence of a restrictive covenant on your neighbour, it may be difficult to argue that he should not have planted those trees that are now blocking your light.
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It may be more difficult still to argue that he should remove the newly erected building that now blocks your light. It is important to remember that the right is enjoyed by the land, not necessarily by any particular building or window on it. It is therefore possible to demolish an old building and replace it with a new one and still claim a right to light through the new windows. However, if the windows in the new building are significantly smaller than those in the demolished building, you may have great difficulty in proving that any reduction in light is due to the actions of your neighbour. For advice on rights to light, consult a chartered building surveyor who specialises in the subject. Water Rights These usually take the form of a right to draw water from a watercourse or a spring on a neighbour's land.
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Problems can arise if you increase the amount of water that you take, or if the natural flow diminishes below a level that will support your needs. If you should stop using the water because you have made arrangements for an alternative water supply, you may have difficulty if you try to draw on the water again after a gap of many years. For advice, consult a water engineer.
Land Law by Mark Davys | Suggested Answer to Exercise (Part 3)
Distinguish the following concepts: a Occupation v. Occupation is a mode of acquiring ownership which involves some form of holding Arts. Possession is the holding of a thing or the enjoyment of a right Art. Occupation can take place only with respect to property without an owner; while possession can refer to all kinds of property, whether with or without an owner.
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Occupation in itself, when proper, confers ownership; but possession does not by itself give rise to ownership II Tolentino, Civil Code, ed. Manila Petroleum Co. The facility was located on a floating platform made of wood and metal, upon which was permanently attached the heavy equipment for the petroleum operations and living quarters of the crew. The floating platform likewise contained a garden area, where trees, plants and flowers were planted. The platform was tethered to a ship, the MV , which was anchored to seabed. Alternative Answer: The platform is an immovable property by destination. It was intended by the owner to remain at a fixed place on a river or coast. Alternative Answer: The platform is movable property if it is not permanently attached or anchored to the ship or seabed. As a result, it may be brought from place to place for various purposes or may be towed or tethered to other vessels. It is intended to meet the needs of the industry being undertaken by Manila Petroleum Co.
Easements mock exam question - Land Law - Stuvia
The equipment partakes of the nature of the immovable upon which it has been placed. The living quarters, if attached to the immovable platform with permanence, becomes an immovable as well. Permanence means they cannot be separated without destroying the platform or the quarters Art. On the other hand, if the attachment is not permanent, or is merely superimposed on the platform, then the living quarters are movable property. Alternative Answer: With respect to the equipment, the same is real property under paragraph 5 of Article If the platform is movable property, then the living quarters are movable property as well, because they partake of the nature of the platform to which they are attached. Alternative Answer: The trees, plants and flowers are also immovable, having been planted in the garden area, under Art.
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