IS IT AN EASEMENT? 4 STAGE TEST.
DOES IT COMPLY WITH TEST FOR DURATION IN LPA 1925 S 1(2)(a)
▪ If the length of the easement isn’t the length of the freehold or lease, it can only ever
be equitable in nature. (LPA 1925 s (1)(3))
Does it FULFIL THE REQUIREMENTS IN ELLENBOROUGH PARK?
1. Must be a dominant and servient tenement.
2. Right must accommodate the dominant tenement
3. Must be diversity of ownership
4. The right must ‘lie in grant’
IS IT PREVENTED BY A DISQUALIFYING FACTOR?
1. Exercise of the right must not amount to exclusive possession of the servient tenement
2. Must not involve additional, unavoidable expenditure by the servient owner.
3. Must not depend on permission being given by the servient owner.
HAS IT BEEN ACQUIRED EXPRESSELY, IMPLIEDLY OR BY PRESCRIPTION?
1. Express creation
Legal – by deed & registered.
Equitable – estate contract LP(MP)A 1989 s2. (writing, agreed terms, signed by both)
2. Implied
Necessity
Common intention
Wheeldon v burrows
LPA 1925 s 62
3. Prescription (Long use – at least 20 years)
DOES IT COMPLY WITH TEST FOR DURATION IN LPA 1925 S 1(2)(a)
▪ If the length of the easement isn’t the length of the freehold or lease, it can only ever
be equitable in nature. (LPA 1925 s (1)(3))
Does it FULFIL THE REQUIREMENTS IN ELLENBOROUGH PARK?
1. Must be a dominant and servient tenement.
2. Right must accommodate the dominant tenement
3. Must be diversity of ownership
4. The right must ‘lie in grant’
IS IT PREVENTED BY A DISQUALIFYING FACTOR?
1. Exercise of the right must not amount to exclusive possession of the servient tenement
2. Must not involve additional, unavoidable expenditure by the servient owner.
3. Must not depend on permission being given by the servient owner.
HAS IT BEEN ACQUIRED EXPRESSELY, IMPLIEDLY OR BY PRESCRIPTION?
1. Express creation
Legal – by deed & registered.
Equitable – estate contract LP(MP)A 1989 s2. (writing, agreed terms, signed by both)
2. Implied
Necessity
Common intention
Wheeldon v burrows
LPA 1925 s 62
3. Prescription (Long use – at least 20 years)
