STEP 3: Has it been validly created?
6 important questions on STEP 3: Has it been validly created?
Explain what is meant when the person selling part of their land reserves an easement from the buyer?
Explain the formalities for expressly created legal easements?
- Capable of being legal if the easement is equivalent to a fee simple absolute or a term of years absolute (s. 1(2)(a) LPA 1925)
- Created by deed (s.52 LPA 1925)
- Correct formalities under (s.1 LP(MP)A 1989)
- Clear on the face of the document that it was intended to be a deed, signed, witnessed + delivered
- Registered (s.27 LRA 2002)
Explain how a grant or reservation of an easement can be implied after a sale of part of the land? Explain the two ways? (Wong v Beaumont Property Trust Ltd)
- Necessity
- without the easement, no use can be made of the land (completely impossible to use the land without the easement, not just advantageous)
- Common intention
- both parties intend the property to be used in a specific way
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What are the 4 main conditions in (Wheeldon v Burrows) that must be satisfied in order for the buyer on a sale of part to acquire an implied easement over the sellers land in the absence of express provision?
- Continuous
- easement possesses a degree of permanence (e.g. drains or a path)
- Apparent
- apparent on inspection
- Necessary for the reasonable enjoyment of the land
- 'quasi easement' = rights exercised over one part of your land for the benefit of another part of the same land is sold (benefiting one piece of land over another piece of land where both pieces of land are owned by the same person)
Explain why it is easy to rebut a presumption under common law?
What are the three conditions that have to be satisfied in order for a right to qualify as an easement under common law?
- The acquiescence of the owner (acceptance without protest):
- the users' right is unchallenged by the owner
- Exercised openly (without secrecy)
- Without permission
- User = fee simple owner
- continuous for a period of time (20 years)
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