Land Law

Ninth edition

by Mark Davys

Suggested Answer to Exercise 8.4 (Part 2)


Planning Your Answer

Issues

  • Is Sam entitled to store tractors in the barn on Jeff’s land?
  • Is Jeff entitled to use the short cut?
  • Is the nursery school entitled to use Jeff’s field as a play area?

Rules

Have any of the arrangements created an easement?

In each case:

  1. Is the right claimed capable of being an easement – the four traditional requirements (Re Ellenborough Park [1956] Ch 131)?
    See Land Law, Section 8.4.
    1. Is there a dominant and servient tenement?
    2. Does the right accommodate the dominant tenement?
    3. Are the dominant and servient tenements owned or occupied by different people?
    4. Is the right capable of being the subject matter of a grant?
  2. Has the right been acquired by a method that creates an easement?
    1. Statute – very unlikely
    2. Deed
      1. Grant or reservation?
      2. Express or implied?
    3. Prescription?
      See Land Law, Sections 8.5.
  3. If necessary, has the right been protected by registration?
    1. Legal easements.
    2. Equitable easements.
    See Land Law, Section 8.2.2 and the relevant Sections of Chapters 15 (registered title) and 16 (unregistered title).

Answer Plan

  1. Introduce the issues, the key concepts and why they are important.
    One of the difficulties with this question is deciding how much detailed law to put in the introduction and how much to state as you deal with each of the claims. It is not wrong to start by setting out the law in detail before applying it to each of the rights in turn and doing so may help avoid duplication and repetition as the answer progresses. However, a detailed statement of the rules at the beginning of the answer will need to be balanced by setting out clearly exactly how those rules apply to each of the rights being claimed.
  2. Storing the tractors
    1. Is this right capable of being an easement?
    2. Has it been properly created?
    3. Did it require protection by registration?
  3. The short cut
    1. Is this capable of being an easement?
    2. Has it been properly created?
    3. Did it require protection by registration?
  4. Playing in the field
    1. Is it a right that is capable of being an easement?
    2. Has it been properly created?
    3. Did it require protection by registration?
  5. Make sure that you have stated your conclusions and that these conclusions follow logically from your reasoning.

Before you go to the next page, prepare a more detailed answer plan, including references to relevant cases and statutes.


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