Candidate number - A84079

Overall word count – 1159

Question 1

This essay will explore the significance of the defined boundaries in easement law as well as
determine the extent to which the law fulfils these requirements. Easements can be created
expressly, impliedly or by prescription, however, the focus lies on how they are impliedly created
in this essay.

An easement is a legal right allowing an individual to use another parties’ property for a specific
purpose such as a right of way (ie walking across your neighbour’s land). This incorporated
property right is capable of being a legal right as stated in section 1(2)a) of Law of Property Act
1925. The requirements for a valid easement have been considered in Re Ellenborough Park
[1955]: there must be two separate plots of land (dominant and servient tenements), the servient
must accommodate the dominant tenement, there must be diversity of ownership and subject
matter of a grant. The law clearly sets out what easements are not for example, according to
Batchelor v Marlow an easement is not capable of amounting to exclusive possession. An
easement is a negative right (Regis Property v Redman) therefore, expenditures cannot be
involved as this places an excessive positive obligation on the servient tenement. These clearly
set out boundaries provides property owners and users with clarity regarding the boundaries of
their rights.

There are four ways to acquire impliedly granted easements: necessity, common intention,
Wheeldon v Burrows [1879] and LPA 1925 section 62. Implied reservation can only happen
through necessity and common intention. Implied by necessity has a narrow scope, it considers
whether the land can be used without the implied easement, for example if you can take a longer
and more difficult route to access the land then easement will not be granted (Nickerson v
Barraclough) . Implied by common intention is granted by the courts to parties however, there is
a heavy burden of proof to show that the easement was mutually intended before the transaction
and why it was not incorporated into the conveyance (Re Webb’s Lease [1951]) and/or expressly
made. Impliedly created easements under the doctrine of Wheeldon v Burrows [1879] involves
the conversion of a quasi-easement into easements. If the owner of the land sells the quasi-
dominant part of his land, the rule established in Wheeldon v Burrows suggests that they might
impliedly grant the quasi-easement to the grantee only if: they are continuous and apparent,
necessary to the reasonable enjoyment of the land and are used at the time of the grant by the
owner. Finally, easements can be impliedly created under section 62 of the LPA 1925 however,
s62 only applies to conveyances which is defined as transfers by deed therefore, only legal
easements can be created. Section 62 requires prior diversity of occupation of dominant and
servient land, the conversion of mere licenses to easements has been demonstrated in Wright v
Macadam. A further case of interest is Platt v Crouch as the court had established that the
requirement of ‘continuous and apparent’ can act as an alternative for ‘prior diversity’ meaning no
prior diversity of ownership is required for s62 to operate if the right is continuous as well as
apparent. This confusion and indecisiveness cause the strictly defined boundaries to be
questioned by individuals. It may become problematic for individuals to know what their rights are
and in what scenarios their believed rights would not be considered by the courts as successful.

The Law Commission Report had also come up with a report exploring the difficulties of
understanding easements, therefore, suggesting we adopt a more simplified version of easement
law. Overall, the difficulties lie on how easements could be created by parties and not what an
easement is and what it is not and further reforms to the law could benefit society dramatically.
Question 4

For a trust to operate, the required elements must be satisfied to allow the trustee to execute its
duties. According to Knight v Knights there must be certainty of intention (an intention to create a
legally binding trust), certainty of subject matter (assets in the trust must be identifiable) and
certainty of objects (the beneficiaries must also be identifiable).

Intention is determined through the language used and looking at who used it. Formal words are
not required (Re Armstrong) but the language used must be commanding. According to Swain v
Law Society, if lawyers wanted to establish a trust, they would be more careful with their words,
meaning courts would scrutinise their language excessively. However, Roberto is not portrayed
to be a lawyer therefore, his use of language may be granted more leniency. Established in Paul
v Constance [1977], informal language can declare trusts such as ‘this money is as much yours
as it is mine’. In clause (a) Roberto uses imperative language demonstrating the intention to
create a trust. Secondly, clause (a) must have certainty of subject matter, Roberto indicates the
subject matter is money however, he did not specify the amount therefore, there is a lack of
certainty regarding subject matter as the amount is not readily identifiable. The word ‘bulk’ in
Palmer v Simmonds [1854] was deemed uncertain, Roberto had used ‘most’ which, arguably,
does not satisfy the certainty of subject matter element. Clause (a) therefore, is not a valid trust.

The certainty of intention is satisfied in clause (b). The certainty of subject of subject matter in
clause (b) is again uncertain. Roberto stated that his wife had the power to choose the 10 friends
to benefit from the £5000, however, according to Boyce v Boyce [1849] this is not a valid trust.
The class of beneficiaries is not readily identifiable therefore, the trust fails despite there being
certainty of objects (the stated £5000).

Certainty of intention is satisfied in clause (c). The certainty of subject matter, arguably, is
satisfied. According to Re London Wine, tangible property must be segregated otherwise the
trust imposed fails. Roberto had briefly stated that his vintage clock collection was to be sold
without specifying how many and which ones. However, the brief language used of ‘clock
collection’ suggests that he intended for his whole collection to be sold. Clause (c) has certainty
of object as it is within the beneficiary principle (Morice v Bishop of Durham [1970]). The class of
beneficiaries is readily identifiable, as Roberto stated they are the present and past employees of
his company.

Clause (d) is only capable of being a private purpose trust as there is no human beneficiary.
there is certainty fo intention. The certainty of subject matter is, satisfied as Roberto had
specified an amount of £300. However, the perpetuity rule applies here which prevents a trust
from existing forever. The common law rule is that the trust lasts for a life in being plus 21 years.
Goldfish do not live that long; therefore, it is uncertain what will happen with the remainder of the
£300 after the pet dies. The courts may, therefore, consider this to not be a valid trust.