Chapter 10 Flowcharts with audio: How to analyse an easements scenario

In this audio I'm going to talk to you about how to analyse an easement scenario.

You see in front of you two flow charts; you’ll find these also in the book. Imagine you’ve got an easements question in front of you: how are you going to analyse it? Well, I've created these flow charts to help you give a structure to your answer. The first is the broad structure that I suggest you should adopt.

Start by asking: is the right claimed capable of constituting an easement? If it is capable of amounting to an easement, next ask yourself: has an easement in fact been created, and if so, how? For example, is it expressly or impliedly created? And finally, ask yourself what is the status of the easement? That means asking: is it legal, is it equitable? And what is the effect of that easement on third parties, if that's relevant in this scenario?

There’s a second flow chart you'll find, and this is a helpful way of exploring the essential characteristics of an easement. Essentially, what this flow chart shows you is if a right claimed is capable of constituting an easement. So, you can use the steps of the flow chart, and as you work through them it will show you the fundamental essential characteristics of an easement--and these come from the case of Re Ellenborough Park; it means asking, is there a dominant and servient tenement? Is there a separate ownership or occupation of the dominant and servient tenements?

Next, does the purported easement accommodate the dominant tenement? And accommodation sounds quite confusing in this context and rather odd. But really, it's saying something quite straight forward. It means simply that the rights must benefit the dominant land per se. In other words, it must benefit the land and not merely provide a personal advantage to the land owner.

And the final question: is the purported easement capable of forming the subject matter of a grant? And there are several aspects to this question and you'll find them on the flow chart. Is there a capable grantor? Is there a capable grantee? Is the right claimed defined with sufficient clarity? Is there note in positive burden imposed on the servient land owner? There must be no positive burden imposed for a right to amount to an easement. And finally, check that the right does not deprive the servient land owner of the reasonable use of their land.

If you satisfy these tests as set down in this flowchart, then the right claimed will be capable of constituting an easement. Of course, that's not the end of the story; all that tells us is that the right could constitute an easement. You have to move to your next aspect that we looked at in the first flow chart. Was an easement created, and how? And then finally move to consider the effect of the easement on third parties. For example, is it legal, is it equitable, and has it complied with any registration requirements?