Modern Land Law, 9th Edition

Students: Chapter 7

Welcome to the Student Resources for Chapter 7 of Modern Land Law. Here you will be able to practice your exam technique with a set of essay questions; check your understanding of what land law is with our multiple-choice quiz and short-answer questions; test yourself on your knowledge of the key statutes and case law; and listen to a short lecture podcast on the latest developments within land law.

Click on the tabs below to view the resources:

Essay questions

Question 1

In 2009 Sarah, an artist and the registered freehold proprietor of No. 14 Labyrinth Lane, entered into a contractual agreement with Alan, the registered freehold proprietor of No. 16 Labyrinth Lane which allowed her to put up a sign on the wall of No. 16 advertising her art gallery which was on the other side of town. Now, in 2011, Alan has decided to sell the property to Tony. Sarah has mentioned this to her lawyer friend who has advised her to enter a notice of her ‘easement’ on the register in order to protect her right to put up the sign if Alan does indeed sell the property.

Sarah has contacted you with a number of questions. Advise her.

  • Is Sarah’s lawyer friend correct in saying that Sarah should attempt to protect her right through the entry of a notice?
  • If this cannot be done or if this is not the best way for Sarah to proceed, is there any other way that Sarah can ensure that Tony will have to let her continue putting the sign up on the wall of No. 16?

Sarah has also become anxious that the agreement she has with the owners of No. 12 Labyrinth Lane, that she is able to swim in the pool in their back garden, may be vulnerable if the freehold proprietors of No. 12 were to sell their property. She is therefore wondering if there is any way to protect this right. The agreement is an informal one, and she is just allowed to come round whenever she wants to use the pool.

  • Advise Sarah on the possibility of ensuring that she will be able to keep using the pool next door if No. 12 is sold.

Question 2

In 2004, Laura became the registered freehold proprietor of the entire plot between Puzzle Passage, Walker’s Way and the Main Road. Within this plot there was the large house, No. 1 Labyrinth Lane, Shell Cottage (No. 1A Labyrinth Lane) and No. 3 Labyrinth Lane, the original gatehouse. Laura preferred to live in the gatehouse, working in No. 1 Labyrinth Lane and getting there by way of a gravel path across the land from east to west. She also occasionally used to use the gravel path which ended at a gate to get to the Main Road.

In 2005, Laura sold the gatehouse property to Mary and put up a high fence between the two properties. In the same year Laura permitted Ned to move into Shell Cottage for free whilst he looked for a new house in the area. She agreed that he could store his car in her one-car garage as she did not have a car. Mary also used to use the coal shed in Shell Cottage to store her coal. Eventually in 2006, Laura and Ned agreed that Ned would buy Shell Cottage. Ned became registered proprietor of the property.

In 2008, Laura died and left all of her property to her brother Oliver by will. Oliver has moved into No. 1 Labyrinth Lane and is now trying to prevent Ned from storing his car in the garage. He wishes to continue using Ned’s coal shed to store coal. Mary has also become sick of having to walk the long way round to the Main Road and would like to use the gravel path to get to the Main Road from No. 3.

Advise Ned and Mary.

Question 3

Should the rules relating to easements be replaced by the notion of land obligations?

True/False Quiz

With the exception of the first three questions, answer the questions below based on the facts of this short scenario. A, the freehold proprietor of No. 1 Main Street sold part of his land to B in 2006. B cannot access his land by car or on foot, but can get there by boat. A used to get from B's part of the land to the Main Road by using a path that runs across the property but had not used it for a year or so. He let B use this path from time to time, although B always checked with A first. In 2008, A sold his remaining land to C.

Please select a quiz..
You answered the following questions incorrectly:
    • Question
      of

    Statute Quiz

    Here you should outline the main effect, role, etc. of the provisions below. This is designed as a guide to the most important provisions, and as a means to improve your recall of the statutory provisions.

    Law of Property Act 1925, section 62

    Law of Property Act 1925, section 62 will transform mere permission into legal easements where a deed is used to grant or transfer an estate in land and there is prior diversity of occupation or the easement is continuous and apparent. Book location: 7.9.4

    Prescription Act 1832, section 2

    Prescription Act 1832, section 2 establishes that 20 years' use is sufficient to establish a prescriptive claim. Book location: 7.11.3.1

    Land Registration Act 2002, Schedule 3, paragraph 3

    Land Registration Act 2002, Schedule 3, paragraph 3 specifies the circumstances in which an implied legal interest will be an overriding interest on the registration of a registrable disposition. Book location: 7.6.1.4

    Land Registration Act 2002, section 27

    Land Registration Act 2002, section 27 outlines the consequences of the failure to register an interest.

    Law of Property Act 1925, section 205(1)(ix)

    Law of Property Act 1925, section 205(1)(ix) defines land and includes easements within that definition.

    Case Law Quiz

    Here you should attempt in one or two sentences to outline the main points to be taken from these cases and also three or four key words with their subject matter. This should assist in revision.

    Re Ellenborough Park [1956] Ch 131

    Requirements of easements. The case holds that there are four requirements for a valid easement: (1) there must be a dominant and servient tenement; (2) the dominant and servient tenement must be in separate ownership; (3) the right must benefit the dominant tenement; (4) the easement must be capable of being the subject matter of a grant. Book location: 7.2

    Wright v. Macadam [1949] 2 KB 744

    Section 62, landlord and tenant. Section 62 can imply legal easements into a deed as between landlord and tenant. It is possible to have a (limited) right to store arising as an easement. Book location: 7.2.4, 7.9.4

    Platt v. Crouch [2004] 1 P & CR 18

    Section 62, continuous and apparent. Section 62 will transform a mere permission into an easement by implying an easement into a conveyance if either there was prior diversity of occupation or the quasi-easement was continuous and apparent. Book location: 7.9.4, 7.9.6

    Wheeldon v. Burrows (1879) LR 12 Ch D 31

    Quasi-easement, grant. The rule in Wheeldon v. Burrows means an easement will be implied into a contract or deed if the quasi-easement was in use immediately prior to the contract or conveyance was continuous and/or apparent and its use was necessary for the reasonable enjoyment of the land. Book location: 7.9.3

    Moncrieff v. Jamieson [2007] 1 WLR 2620

    Scottish, easements, possession and control. Moncrieff suggests that an easement will be acceptable if it leaves the servient owner with possession and control of the land. This is not binding in England where the 'reasonable user' test of Batchelor v. Marlow is still good law. 7.2.4

    Podcasts

    Stopped: 

    00:00

    /

    00:00

    Podcast Script

    This podcast discusses the four methods of implying easements.

    The previous podcast in this series discussed the substantive requirements of the lease. This podcast discusses easements and in particular the creation of implied legal easements. For more information on the requirements of easements, see chapter 7.

    An easement is an interest in another’s land which allows you to do something on another’s land, a positive easement, such as a right of way, or, which allows you to prevent the other from doing something on his land, a negative easement, such as the right to the flow of water through a defined channel. Easements are property rights. These rights can be created expressly in formalised writing through a deed and in order to be legal easements they must be entered as the subject of a notice. But they can also be created impliedly. Implied legal easements (i.e. those implied into a deed) will be an overriding interest under Schedule 3, Para 3, Land Registration Act 2002.

    There are four methods of implying easements
    (1) Easements of necessity
    (2) Common intention
    (3) Rule in Wheeldon v Burrows
    (4) Operation of Section 62 LPA 1925

    In this podcast we will go through each of these methods and explain in outline how they work.

    (1) Easements of necessity

    An easement of necessity will be implied into a transfer where one part of the land would otherwise be completely inaccessible. For example, A transfers title to half of his land to B. A cannot now reach his land. A right of way will be implied in A’s favour over B’s plot. Similarly, if B’s land would have been left inaccessible an easement would be implied over A’s land. This method therefore applies both to implied grants and reservations. The land must however be completely inaccessible. Even access by river only will prevent the implication of an easement of necessity, as can be seen in Manjang v Drammeh.

    (2) Common intention

    Similarly, easements can be impliedly reserved or granted if this gives effect to a common intention as to the way in which land was going to be used. For example, in Wong v Beaumont Properties the parties intended on transfer that the basement would be used as a restaurant. This requires adequate ventilation. Since this could only be achieved by passing air through the reserved property, an easement was implied. In order that the easement be implied in this way, a clear and certain common intention must be identifiable, not just a vague plan.

    The remaining two methods, the rule is Wheeldon v Burrows and the rule in section 62 Law of Property Act 1925 are more contentious. They can also only be used to impliedly grant easements.

    (3) The rule in Wheeldon v Burrows

    An easement will be implied if, before the transfer, the previous owner used the land in such a way as to amount to a quasi-easement. For example, he might cross his own land to get to the road. This is a quasi-easement. If this easement is necessary to the reasonable enjoyment of the land and was also continuous and apparent before the transfer, then it will be granted as an implied easement.

    (4) Section 62 Law of Property Act 1925

    The final method of implied grant of an easement is through the operation of section 62 LPA 1925. The rule means that if prior to the grant of the title of part of the land to B, that land was occupied by B and B was permitted to use the land in the way that was akin to an easement, then on the transfer of the title to the land, the permission will ‘elevate’ into an easement.

    This is certainly the orthodox explanation of how Section 62 works but in Platt v Crouch it was suggested that prior diversity of occupation was not required. If this is the case, and the comments were not obiter in Platt v Crouch, then the interaction between Wheeldon v Burrows and section 62 becomes difficult and will often be the subject of a problem question.

    In the next podcast we will look at restrictive covenants and in particular the effect of Section 78 & 79 Law of Property Act 1925. Today’s key concept- implied easements.