CILEx L6 Land Law (Registered & Unregistered) 2 — Questions and Answers
Question 1: How is a legal easement created expressly, and what formalities are required?
- An express grant or reservation of a legal easement must be by deed (s.52 LPA 1925) and, for registered land, completed by registration (s.27 LRA 2002) (Correct answer)
- An easement can be created orally if both parties agree
- An easement only requires writing, not a deed, for registered land
- Express easements do not require registration to bind third parties in registered land
Correct answer: An express grant or reservation of a legal easement must be by deed (s.52 LPA 1925) and, for registered land, completed by registration (s.27 LRA 2002)
A legal easement is created by a deed (s.52 LPA 1925). For registered land, it must also be registered as an appurtenant right on the dominant title and as a burden on the servient title (s.27 LRA 2002) to operate at law — otherwise it takes effect in equity only.
Question 2: What is the rule in Wheeldon v Burrows [1879] for implied easements?
- On a grant of part of land, there is an implied grant of all continuous and apparent quasi-easements that are reasonably necessary for the enjoyment of the part granted and were exercised by the grantor over the retained land at the time of grant (Correct answer)
- All rights exercised over land pass automatically on sale
- The grantor retains all rights over the land sold
- Quasi-easements only pass expressly, never impliedly
Correct answer: On a grant of part of land, there is an implied grant of all continuous and apparent quasi-easements that are reasonably necessary for the enjoyment of the part granted and were exercised by the grantor over the retained land at the time of grant
Wheeldon v Burrows [1879] 12 ChD 31 establishes that on a conveyance of part, quasi-easements that are (1) continuous and apparent, (2) necessary for the reasonable enjoyment of the land, and (3) were exercised by the common owner at the date of the grant pass impliedly to the grantee.
Question 3: What is s.62 Law of Property Act 1925 and how does it affect easements?
- S.62 operates to convert a licence or permission that was being exercised at the time of a conveyance into a full legal easement, unless expressly excluded (Correct answer)
- S.62 abolishes all easements created before 1925
- S.62 requires registration of all easements to be valid
- S.62 provides that easements pass on death without special mention
Correct answer: S.62 operates to convert a licence or permission that was being exercised at the time of a conveyance into a full legal easement, unless expressly excluded
S.62 LPA 1925 provides that a conveyance of land passes all 'liberties, privileges, easements, rights, and advantages' then enjoyed. Courts have used it to convert licences being enjoyed at the time of a conveyance into full legal easements (Goldberg v Edwards [1950]).
Question 4: What is the 'nec vi, nec clam, nec precario' rule for acquisition of easements by prescription?
- To acquire an easement by prescription, use must be without force (nec vi), without secrecy (nec clam), and without permission (nec precario) (Correct answer)
- Prescriptive easements can only be acquired if the use was commercial
- Prescriptive use requires payment of consideration
- Only rights of way can be acquired by prescription
Correct answer: To acquire an easement by prescription, use must be without force (nec vi), without secrecy (nec clam), and without permission (nec precario)
Prescriptive acquisition of easements under the Prescription Act 1832 (and at common law) requires use that is: (1) nec vi — without force, (2) nec clam — without concealment, and (3) nec precario — without permission. Use that is forceful, secret, or permissive cannot ripen into an easement.
Question 5: What is the test for determining whether a freehold covenant is enforceable against a successor in title in equity?
- The covenant must be negative in nature, the covenantee must have land to be benefited, the burden must have been intended to run, and the covenant must be registered (Tulk v Moxhay) (Correct answer)
- Any covenant entered into by the original parties binds successors automatically
- Positive covenants are enforceable against successors in equity
- Registration at the Land Registry is the only requirement
Correct answer: The covenant must be negative in nature, the covenantee must have land to be benefited, the burden must have been intended to run, and the covenant must be registered (Tulk v Moxhay)
For the burden of a restrictive covenant to run in equity (Tulk v Moxhay [1848]): (1) the covenant must be restrictive (negative), (2) the covenantor must have intended to bind successors, (3) the covenant must accommodate (touch and concern) the covenantee's land, and (4) in unregistered land, the covenant must be registered as a land charge; in registered land, as a notice on the register.
Question 6: What is a 'chain of title' and why is it relevant in unregistered conveyancing?
- The series of title documents establishing ownership through successive transactions going back at least 15 years, enabling a purchaser to verify the seller's title (Correct answer)
- The succession of owners of a registered property
- The process by which title transfers through a family on intestacy
- The sequence of mortgage repayments establishing equity in a property
Correct answer: The series of title documents establishing ownership through successive transactions going back at least 15 years, enabling a purchaser to verify the seller's title
In unregistered land, title is proved by a chain of title documents (conveyances, mortgages, etc.) demonstrating a clear, unbroken history of ownership. Under s.44 LPA 1925, a purchaser can require production of title documents going back at least 15 years.
CILEx L6 Land Law (Registered & Unregistered) 2
How is a legal easement created expressly, and what formalities are required?