Hello and welcome to the sixth lesson in the Sqe One Landlord series. I'm Connor. I'm a tutor here at Brightly Learning. And today we'll be looking at easements in preparation for the exam is important to note how to identify an easement. And before we get into the more technical elements of doing this, it's worth noting in advance some more basic points that will help us in this task. So firstly, an easement in basic terms is the right of one person to use the land owned by another in some way, they can be positive or negative like covenants, for instance, a right of way is a active positive right that somebody has to use somebody else's land to cross over somebody's land. Whereas a right of light may restrict the ability of the person burdened by the easement from building on their land to the detriment of the person who has the right of light easements can also look like other interests, for instance, covenants and licenses. But it's important to remember that covenants can only ever be equitable. Whereas easements as we will find out can be legal or equitable easements are also rights over somebody's land. Whereas covenants are rights pertaining to the use of land and licenses are personal rights, which means that they cannot buy in third parties. Whereas easements are a form of proprietary rights and therefore they are capable of binding third parties. We also need to know up front that there is necessity of a dominant and a Serbian tenement involved in easements. A dominant tenement is the land that benefits from the easement of the servient land is burdened by the easement. And if an interest involves expenditure by the servient tenement, it is unlikely to be an easement unless it pertains to the maintenance and repair of a fence or pertains to the obligation to keep common parts of a building clear and well maintained. So more technically, then we need to look at what the four characteristics of an easement are. What are the essential criteria that need to be met. And so all four of the ones on the screen are needed. These were laid down in real Allen Borough Park 1956. And we're going to break down each of these in a little more detail to give us an understanding of if we're presented with facts which suggest an easement, how we can determine whether it will be an easement or not. So firstly, as we've established, there must be a dominant and servient tenement. Now, this refers to the properties or the pieces of land, not the people who own them per se, the people may change, but obviously, the land persists. And so the tenements are the are the pieces of land themselves. Secondly, there must be a dominant tenement which is accommodated by the easement. And the test here is does the right being claimed, make the dominant tenement a better or more convenient tenement as a result, essentially, this means that they must improve or make better the usefulness or amenity of the dominant tenement. Commercial benefits pertaining to business are unlikely to meet this requirement as they'll be typically personal in benefit. So for instance, somebody might be a baker, somebody might be able to have landlords, somebody might be a whole range of different professions. And so it's not necessarily that the piece of land itself will benefit if by a commercial interest, rather the baker might benefit, but somebody else might not. If all the occupiers benefit commercially, then they could meet this requirement. However, so for instance, if there is a sign attached to the outside wall of a house, advertising a public house which it was adjoined to, it was held to be an easement, the advertisement can accommodate the land and therefore meet this requirement of accommodating the dominant tenement. However, contrastingly, if there's no connection between the subject matter of the advert and the bus, the business being run from the property, then there's no benefit. And so there's no easement, the tenements must also be occupied by different people. And then finally, the fourth requirement, which is that their interest must be capable of forming the subject matter of a grant. This is possibly the least straightforward of the ones that we've been looking at. And essentially, there are three elements to this. So firstly, there must be a grantor and a grantee who have legal capacity, the right must be sufficiently definite. So for instance, if it's too vague, then it won't be an interest. For instance, things that might be construed as too vague include things like a right to privacy, a right to a view and the right to walk generally over somebody's land in its entirety, where is the right to light through a defined aperture, for instance, a window and the right to walk across a defined path would be seen as sufficiently definite. The right must also be within the general nature of an easement, right? And this is decided on a case by case basis. However, generally the courts are more hesitant to create new easements. And so it's more likely that an interest will be held as an easement if it is very similar to an existing right. Whereas if it's not seen to be dissimilar to an existing easement, right, then it's not likely to be deemed an easement by the courts. There is some uncertainty in this category and I wouldn't worry too much about the full detail of it, but it's important to note that a right cannot be an easement if it amounts to a joint user or exclusive possession easement is a right over someone else's land. So we cannot prevent the servient tenement owner from being able to use the land as well. And like I said, as long as the interest is similar to existing interests, that increases the likelihood that the court will view it as an easement. So there are three ways of creating an easement via a grant. Firstly, there's statutory grant which is where Parliament passes an act of Parliament to create easements for specific purposes. For instance, statutory easements for public utilities like water, gas, electricity, or perhaps if they're constructing a canal, for instance, under statute, they might create an easement for support. An express grant is simply an agreement between the parties which is usually made in exchange for consideration if it's made by deed and for a definite period of time, then this will be a legal easement. Otherwise it will be equitable in order to do so. It must still be in writing and follow the terms of section two of the law and property Miscellaneous Provisions Act 1989. This means that in order to be an contract, there must be all of the terms made in writing and signed by all of the parties. So those two are fairly straightforward, implied grants are a little trickier to deal with. So let's break each of those down in a little more detail. Now, there are four ways for an implied grant to happen. Firstly, by necessity or common intention. Thirdly, there's the wheel and burrows rule. And finally, there's section 62 of the law of Property Act 1925. It's important to understand each of these separately and be able to distinguish between which ones are more likely on the facts in a given exam question. So let's break each of these down in more detail. So firstly, there's necessity and this only applies if the dominant tenement cannot be used without the easement at all. This requires there to be a deed where the easement can be implied into and alternative rights of way, even if they're majorly inconvenient will eliminate the possibility of a grant by necessity. An example of this would be where property is perhaps at the end of an alley way with a dead end and there is only the option of crossing other people's land to get to the property. For instance, this is called being landlocked, which is a classic example of an easement for necessity arising. The other option is common intention, which is another route to grant an easement implicitly, this means that a party must have intended for rights to be granted if they knew of the intended purpose of the property or land. And the right is necessary for the use of that property for that intended purpose. The court will imply that easement rights necessary to enable that land, then to be used for their intended purpose. For instance, if both parties knew a buyer wanted to use their property as a car repair garage, then they may have received an implied e grant to cover other cars wanting to be serviced by the garage, having the right to cross the retained land of the seller. So if a seller splits their existing property in two and knows that one part wants to be used as a restaurant by the buyer. If the only way the ventilation from the restaurant can happen is through crossing pipes onto the retained land of the cellar, then this is also an example of common intention but also possibly necessity to. So you might be wondering then what is the difference between common intention and necessity? Now, some differences between these two types include the fact that necessity has a very strict high bar. It must be the only option to access the property to use the property. Common intention has a significantly lower bar. And in the case of Don Donovan and ran the court of appeal said that common intention is based on the intended use of the land. And so they will be asking the question, what does it look like the parties intended to a reasonable person? This doesn't mean that a claim for common intention is to be taken lightly but it is easier to prove than strict necessity. The third option is the word in narrows rule for sqe one, you're not expected to typically know case names, but I would recommend learning this case name because it is the name of the rule. So the sqe one questions may refer to the Ws and Narrows rule and you'd need to know what they're referring to. This typically arises where one seller owns multiple plots of land and is getting rid of one of those plots of land or owns one big piece of land and is dividing it into parts and getting rid of at least one of those parts. Now, the effect of this rule is that all quasi easements which were enjoyed by the seller when they owned all of the land is also transferred to their transferee. Typically, their buyer quasi easements means the rights that the seller was using at the time and would have been easements. That couldn't be because there was the same person owning the two tenements to imply a grant prior to will and narrow's rule, there are some requirements that must be met. So there must be, the interest is continuous and apparent. The interest must be necessary for the reasonable enjoyment of the land and it must have been used by the grantor at the date of the grant. Now, the court is likely to interpret continuous and a parent as an interest which is obvious on an inspection of the property. And so for instance, if somebody is claiming a right of way and there are tire marks on the land that will suggest that it is continuous and apparent in wooden Waddington, it was seen that continuous meant uninterrupted or unbroken in the uses. So for instance, youth once a month that it is likely the court is going to place more emphasis on the apparent element than the continuous element following developments in case law. Now there is some unsettled elements to this application and there's not, it's not certain what necessary for reasonable use actually means, but it seems that there's going to be a choice between reasonable use and continuous in appar. So we know that it's not as strict as necessity for reasonable enjoyment element, but the details of it are not exactly precise. The fourth option is section 62 subsection one of the law of property 1925. This element implies a mul multiple different things into conveyances for land. You'll see them on the slide. The key thing for us is that it implies easements into conveyances. This means that rights will automatically pass with the conveyance to a buyer unless the conveyance expressly excludes them or contains words that show that it intended not for that to happen. There must also be diversity of occupation which is one key difference between the wing and Burrows rule and section 62. The only other requirement for section 62 to pass following fairly recent case law seems to be the requirement that the easement is continuous and apparent in its use as we discussed earlier. An example of how section 62 might be used to create an easement might be where somebody is using their landlord's garage to store items. And they do so for say one year when it comes to renew their tenancy, tenancy document doesn't include anything about the right to use the garage. So the lease says nothing about that. Section 62 will then provide right to use the garage for storage into the easement provided. There is a deed dealing with the legal estate. In this case, a lease, the writers claimed as an easement, it's capable of being an easement. There's no express contra intention in the deed and there's diversity of the occupation of the dominant and the Serbian Serbian tenements and the use of the easement is continuous and apparent. If all those are met, then section 62 can also offer an implied grant of an easement. Prescription is the other method of obtaining an easement. And essentially this means that you've used the land for a long period of time. And if you can do that, then the court may find that you have obtained an easement right through that long use. The best bet in the exam is going to be the route called Los Modern Grant, which means if you can show 20 years of continuous use of an easement, the court will then hold some time since 1189. A deed was made with the easement in it, but that deed has been lost. And so we'll grant you the easement as a result. However, it's important to note that the use of the land must not be with force secrecy or permission. And even if evidence is presented to show that there was no deed granted, then the court will not defeat the claim as a result of that evidence. This raises what's called a legal fiction. So even if there's evidence suggests that didn't happen, the court will overlook that evidence under the lost modern grant approach. This can only be rebutted by showing that the grant was legally impossible. So this means that there must be no capacity issue otherwise lost. Modern grant may provide a route to obtain an easement by prescription. This is contrasted with the common law rules for prescription, which are similar to los modern grant, but they do not feature that legal fiction. So again, you use it without force secrecy or permission for 20 years. And then they assume at some point since 1189 a deed has been made with an easement and it's been lost. However, this common law route can be defeated by evidence. So if there are elderly people or ancient records showing that excess was over a different path in the 16 hundreds instance, that may defeat the claim under the common law route for prescription, this makes the common law route the least likely to be the best answer in the exam. Turns out it's going to be lost. Modern grant typically, or perhaps the Prescription Act, which is the third method. The Prescription Act allows the user of a piece of land for 20 years. A defense if the Serbian tenement argues that the right could not have existed in 1189. If you can prove the use for 40 years, then your easement interest would be absolute and indefeasible. Even if it was only granted by oral permission for this to happen, there must be a continuous use of the easement over the period of time being claimed. So similar to Los modern and grant and continuous here means that prevention for less than one year is not enough to stop the period from accruing. So if somebody uses it for 19 years in one day, that basically guarantees 20 years will be recognized. However, unlike lost modern grant, there is the next before action rule which applies. So even if you've got your 20 years, so you're on 20 years and five days, if somebody then prevents you from using your easement, right? Before a claim form is issued in the court or a writ, then the Prescription Act method will be defeated because of the next before action rule. It means that you must have used the easement continuously over the period until a claim form is issued. So even if you have it 20 years, somebody stops you on 20 years and five days, that's before any claims issued, that is likely to defeat your claim under the Prescription Act. Now, we've looked at the grant of an easement implying a reservation of an easement is more straightforward. This is essentially where the seller wants to retain a right over the land that they've just transferred to somebody else. This was only possible under necessity or common intention. Unless obviously there's an express reservation. The courts are very strict in determining necessity as we looked at in our discussion of the grant of easements. Earlier. Finally, just a quick note on whether an easement is going to be legal or equitable. This will depend on the methods that have been used in the creation of the easement. So in registered land, both legal and equitable easements will need to be registered in order to bind and for to be legal, the easement will need to be made in a deed for a definite period of time. So that would be, for instance, 10 years or forever granting me an easement for the rest of my life would not be a definite period of time because we're not sure when I will pass away on the screen, you'll see some instances where an easement that is not granted or reserved expressly is an overriding interest. And so it will be useful to get a sense of those factors as well. Otherwise, I hope this has been a useful survey of some of the key parts of easements. Hopefully, it's made the reading a little bit simpler and more straightforward in some of the concepts. Let's test what you've learned so far. So please pause this video, read the question on the next slide and try to answer it from memory without the assistance of any books or websites, et cetera. And you can take as long as you need in answering the question. But remember, you'll only have 1.7 minutes roughly per MC Q in the real sqe one exam when you're finished and you think you've got your answer, continue the video and we'll look at the reasoning as to what the best answer was. Well, and if you said a is the best answer, this is because the man is crossing over the garden by permission, which is very likely to be found by the court because there are signs and the neighbor has acknowledged the man's use over the years. If you're interested, there's a reason why each other option is not the best answer below. Otherwise, I hope this has been useful and I look forward to seeing you for more land law and property practice in the future.
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