3 - Easements

Question 1

What is an easement?

Answer 1

An easement is a right for one landowner to make use of another parcel of land for the
benefit of their own land. For example, a right of way.

Question 2

What is a profit (profit a prendre)?

Answer 2

A profit (or profit a prendre) is a right to go on to somebody else’s land and remove from the
land something which exists naturally. For example, a right to:
* Catch and take fish
* Graze animals
* Extract minerals such as gravel or chalk
* Hunt or shoot.

Question 3

Is an easement capable of being legal?

Answer 3

Easements are capable of being legal, but only if they meet the requirements of s 1(2)(a) LPA.

In order to be capable of being legal, the right must be granted for the equivalent of either:
* An estate in fee simple absolute in possession (freehold), ie forever; or
* A term of years absolute (leasehold), ie for a fixed ascertainable duration.

An easement created for an uncertain duration is, therefore, not capable of being legal and
will exist in equity only – s 1(3) LPA 1925

Question 4

What are the formalities required to create a legal easement?

Answer 4

A deed is required to create a legal easement – s 52(1) LPA 1925. The deed must meet the
requirements set out in s 1 LPMPA 1989.

To be a deed, a document must comply with the formalities in LP(MP)A 1989, s 1:
- Must be clear it is intended to be a deed
- Signed by grantor and witnessed
- Delivered /dated

The easement must be substantively registered at the Land Registry to be legal: LRA 2002, s 27(2)(d).

Once this is done, the benefit of the easement is noted on the Property Register of the dominant land’s title and the burden is noted in the Charges register of the servient land’s title.

If any formalities or registration requirements are not met, the easement may be recognised as an equitable easement.

If an agreement for an easement is entered into which complies with s 2 LPMPA 1989, this
creates a contract for an easement, enforceable in equity, following the doctrine in Walsh v
Lonsdale

Question 5

What is an equitable easement?

Answer 5

Easements which fall within the definition of legal easements in LPA 1925, s 1(2)(a) but have not been created correctly may be recognised in equity as estate contracts.

This means that equity may interpret the failed legal transaction as an enforceable contract to create a legal easement.

To be interpreted this way, the failed legal easement must comply with the formalities for an estate contract set out in LP(MP)A 1989, s 2:
- Must be made in writing
- Must include all expressly agreed terms
- Must be signed by both parties

No substantive registration is needed for an equitable easement to exist.

Easements which do not fall within the definition of legal easements in LPA 1925, s 1(2)(a) Because they are not granted or reserved for a freehold or leasehold term can only be equitable. These can be described as ‘inherently equitable’ easements.

This type of equitable easement is much less formally created. The minimum formalities are set out in LPA 1925, s 53(1)(a):
- Must be made in writing
- Must be signed by the grantor

Question 6

Key terminology used when discussing easement.

Answer 6

Servient tenement - The land over which the easement is exercised (the burdened land).

Dominant tenement - The land that enjoys the right (the benefitted land).

Servient owner - The owner of the servient tenement.

Dominant owner - The owner of the dominant tenement

Grant - The land owner creates an easement in favour of the buyer.

Reservation - The land owner creates an easement in favour of their own land
when selling to a buyer.

Example: The farmland (owned by Graham) will be the servient tenement in respect of the right of way and the dominant land in relation to the drain. The barn (owned by Thomas) will be the dominant tenement in relation to the right of way and the servient land in relation to the drain. The right of way is a grant of an easement. The right to use the drains is a reservation of an easement

Question 7

What constitutes an easement, and what are the four essential characteristics that must be present for a right to qualify as an easement?

Answer 7

An easement does not have a legal definition or an exhaustive list of types; new easements can be recognised as analogous to existing ones.

For a right to exist as an easement, the following four essential characteristics must be present (Re Ellenborough Park):
1. There must be a dominant (benefiting) and a servient (burdened) tenement.
2. The easement must accommodate the dominant tenement, meaning it should be connected to the normal enjoyment of the land.
3. The dominant and servient tenements must not be owned and occupied by the same person.
4. The easement must be capable of forming the subject matter of the grant.

Question 8

Why is it necessary for there to be a dominant and servient tenement for an easement to exist?

Answer 8

An easement can only exist if it is attached to the dominant land.

It is essential to identify both a dominant and servient tenement at the time of the grant, as easements cannot exist “in gross” (without a dominant tenement).

The rationale for this rule is that an easement becomes part of the land, as defined in s 205 LPA, allowing future owners of the dominant tenement to enjoy the benefit.

If there is no identifiable dominant tenement, any attempt to create an easement results in a licence only.

Example: while easements cannot exist without a dominant tenement, a profit can exist in gross where only a servient tenement is identified (as established in Gatley v Godfrey).

Question 9

How must an easement accommodate the dominant tenement, and what guidelines help to determine this connection?

Answer 9

An easement must be connected with the normal enjoyment of the dominant tenement, with its accommodation being a question of fact.

For example: A right of way over land in Northumberland cannot accommodate land in Kent (Bailey v Stephens).

The dominant and servient tenements need not be adjacent, but they must be close enough to establish a connection (as noted in Pugh v Savage).

The right must benefit the land itself, not just the owner personally.

Guidelines include:
- Does the right improve the marketability of the land?
- Would any owner of the land see it as a benefit?

Valid easements can include the right to use a communal garden (Re Ellenborough Park), while a right to put pleasure boats on a canal was denied as it was unrelated to the ordinary use of the dominant land (Hill v Tupper).

Question 10

What is the principle of diversity in ownership regarding valid easements, and how does it apply to landlords and tenants?

Answer 10

The principle of diversity requires that an easement is a right exercised over one piece of land for the benefit of another, meaning the dominant and servient owners must be different individuals.

This principle is satisfied in landlord and tenant scenarios, where a landlord (owner of the servient land) can create an easement in favour of the tenant (occupant of the dominant land).

Rights exercised by a sole owner of two separate properties are termed ‘quasi-easements’ and can be converted to easements upon the sale of part of the land.

Question 11

What criteria must be satisfied for an easement to be capable of forming the subject matter of a grant?

Answer 11

An easement must be a legal interest under s 1(2)(a) LPA and must meet several criteria:
- It must be capable of reasonably exact definition, avoiding vague rights (Harris v De Pinna).
- It must not impose any expenditure on the servient owner; they only need to suffer something being done on their land (Rance v Elvin).
- It must not be so extensive as to amount to a claim to joint possession of the servient tenement.

Example: Easements for storage must not exclude the servient owner entirely, as shown in cases like Wright v MacAdam and Grigsby v Melville.

Negative easements are viewed cautiously, with only light, air, and support being recognised, as seen in Hunter v Canary Wharf Ltd, which denied a claim for a television reception easement due to the potential burden on the servient land.

Question 12

What is the significance of negative easements in relation to easements generally, and how does the law view their recognition?

Answer 12

Negative easements allow the dominant owner to prevent the servient owner from doing something on their land.

The law is very cautious in recognising new types of negative easements because they could limit the servient owner’s full enjoyment of their land and hinder legitimate development.

The only recognised negative easements in English law are those related to light, air, and support.
- While a right to light can be established through a defined aperture (e.g., a conservatory), it must be shown that the light has been infringed, meaning the remaining light must drop below what is needed for ordinary purposes of inhabitancy or business.

Question 13

In what circumstances might a right claimed be deemed not to constitute an easement, and what principles apply to this assessment?

Answer 13

A claimed right may be deemed not to constitute an easement if it does not accommodate the dominant tenement or is too extensive, thus leaving the servient owner with no reasonable enjoyment of their land.

For example:
- In Batchelor v Marlow, a claim to park six cars on servient land was denied as it left the owner with no reasonable use of their land.
- The decision in Moncrieff v Jamieson suggested that as long as the servient owner retains possession and control, a right could be an easement, even if the dominant owner enjoys exclusive occupation.

The law ultimately looks at the degree of the right claimed, considering both temporal and spatial aspects of the use, as well as the necessity of allowing the servient owner to maintain some degree of control over their land.

Question 14

What are the different methods by which an easement can be created?

Answer 14

There are several methods by which an easement can be created:
- Express grant/reservation
- Implied by necessity
- Implied by common intention
- The rule in Wheeldon v Burrows
- Section 62 LPA 1925
- Prescription

Increasingly, courts treat easements implied by necessity and those implied by common intention as one category.

Question 15

What is an express grant or reservation of an easement?

Answer 15

Express grant: This occurs when the servient owner executes a deed granting the dominant owner an easement over land owned by the servient owner. It is an agreement made knowingly and deliberately.

Express reservation: This occurs when the seller reserves or retains rights over the land they are selling. In this case, the land retained becomes the dominant land, and the land sold becomes the servient land.

Question 16

What is the status of implied easements at law?

Answer 16

The implied easement takes its status from the status of the document it is implied into.

Implied legal easements: An easement which is implied into a transfer deed or a legal lease is an implied legal easement.

Implied equitable easements: If the easement is implied into a contract or an equitable lease it is an implied equitable easement.

Question 17

What are easements implied by necessity?

Answer 17

This applies to both grants and reservations.

An easement of necessity arises when a landlocked parcel of land is sold, meaning there is no means of access to the land from the public highway.

The law is willing to imply an easement of necessity only in extremely limited circumstances.
- The easement must be such that, without it, the property cannot be used at all, not merely necessary for reasonable enjoyment (Union Lighterage v London Graving Dock Company).
- A claim for an easement of necessity will fail if there is an alternative means of access, even if that alternative is dangerous.
- An easement of necessity can only be used for the purposes for which the dominant land was being used at the time the necessity arose, i.e., at the date of the grant or transfer (London Corporation v Riggs).

Question 18

When will an easement be implied by common intention?

Answer 18

This applies to both grants and reservations.

Where land is conveyed for a purpose known to the grantor, any easement over land retained by the grantor, which is essential for that purpose, is implied into the grant in favour of the grantee.

Example: Wong v Beaumont Property Trust Ltd: In this case, an easement was implied to allow the installation of a ventilation shaft needed for the property to function as a restaurant, as required by the lease.

The law readily implies the grant or reservation of easements necessary to give effect to the common intention of the parties to the grant of real property. The intention must relate to a definite and particular manner in which the land is to be used (per Lord Denning MR).

Look for facts where a common purpose is known to the parties and the right claimed is necessary for the fulfilment of that purpose.

Question 19

What is the purpose and scope of the rule in Wheeldon v Burrows relating to the creation of easements?

Answer 19

The rule in Wheeldon v Burrows applies only to the grant of easements and not to reservations. It converts ‘quasi-easements’ into easements when part of a landowner’s land is sold, subject to the following conditions being met:

Existence of a quasi-easement prior to the sale: The right must have been exercised by the landowner over their own land before the sale.

Continuous and apparent: The right must involve habitual enjoyment and must be obvious upon careful inspection by a person ‘ordinarily conversant with the subject,’ such as a surveyor

Necessary for the reasonable enjoyment of the land sold: The standard of necessity is less stringent than for an easement of necessity. The presence of an alternative right may not necessarily defeat the claim.
- In Wheeler v Saunders, the claim for a right of way failed because the alternative access was just as convenient.
- In Millman v Ellis, the claim succeeded because the alternative route was dangerous, making the right claimed necessary for the reasonable enjoyment of the land.

The right must be in use at the time of the sale: The rule will only apply if the quasi-easement was actively in use when the land was sold.

Question 20

How does Section 62 LPA 1925 operate in automatically passing easements to a buyer?

Answer 20

Section 62 LPA 1925 is a word-saving provision that automatically passes to a buyer all liberties, privileges, easements, rights, and advantages appertaining to the land being conveyed, even if these rights are not expressly mentioned in the deed.

The section operates to pass existing rights to the buyer without needing formal words in the conveyance. Case law has extended this provision to create new easements, as seen in Wright v MacAdam, where a licence to store coal in a coal shed was converted into a legal easement under Section 62 when a new tenancy was granted.

Question 21

What are the conditions required for the operation of Section 62 LPA 1925 in relation to easements?

Answer 21

The conditions required for the operation of Section 62 LPA 1925 in relation to easements are:
1. Conveyance: There must be a written document transferring a legal estate (this excludes contracts for sale).
2. Diversity of occupation: At the time of the grant, the land must be occupied by different parties. However, this requirement does not apply to easements of light or where the rights were continuous and apparent (as seen in P&S Platt Ltd v Crouch and Wood v Waddington).
3. Existing privilege: There must be an existing licence or permission at the date of the conveyance.
4. The right must be capable of being an easement or profit: The right must satisfy the four essential characteristics of an easement (Re Ellenborough Park).

Look for situations involving an existing licence or permission and a subsequent conveyance, as these may result in the licence being converted into an easement.

Question 22

What are the three types of prescription methods to create a legal easement.

Answer 22

There are three types of prescription methods:
- At common law
- Doctrine of lost modern grant
- Prescription Act 1832

Question 23

What are the requirements for a legal easement to be created through prescription?

Answer 23

A legal easement is created through prescription if the dominant owner can show use of the right for 20 years. The court presumes the right had a lawful origin. Can only be acquired by two freehold owners.

Further, the right must be exercised:
Continuously: It can be used by several freehold owners in succession and may be intermittent in nature. In Diment v N H Foot, use on six to ten occasions over a 35-year period qualified as continuous use.

As of right: The right must be exercised without force, secrecy, or permission:
- Without force (nec vi): Force includes removing obstructions or ignoring the servient owner’s protests (verbal, written, or signage).
- Without secrecy (nec clam): The use must be open and not hidden. In Liverpool Corporation v Coghill, effluent pouring at night was secret, even without deliberate concealment.
- Without permission (nec precario): Permission can be written or oral. Payment suggests permission, but mere toleration will not prevent the acquisition of a prescriptive easement.

Question 24

How does prescription at common law create an easement?

Answer 24

Prescription at common law creates an easement when it has been enjoyed continuously as of right since time immemorial, which is defined as since 1189. The grant of an easement is presumed if use can be shown for 20 years or more.

However, this presumption can be rebutted by showing that:
- The right was not exercised at some point since 1189.
- The right could not have been exercised.
- The dominant and servient tenements were vested in the same owner (unity of seisin).

Since the presumption can be easily rebutted, prescription at common law is rarely relied upon.

Question 25

What is the doctrine of lost modern grant in relation to prescription?

Answer 25

The doctrine of lost modern grant presumes the grant of an easement if it has been enjoyed continuously as of right for 20 years or more. The basis for this is the presumption that there was a grant of the right since 1189, but the grant has been lost.

This doctrine is entirely fictional and is relied upon when prescription at common law or under the Prescription Act 1832 cannot be used.

It is applicable in situations where:
- The dominant and servient tenements have been in common ownership since 1189.
- There is a gap in the user exceeding one year, meaning the user is not “next before the action brought.”

Question 26

How does the Prescription Act 1832 create a prescriptive easement?

Answer 26

Under the Prescription Act 1832, if the dominant owner can show user as of right for 20 years (30 years for profits), a prescriptive easement is obtained even if the user clearly commenced after 1189 (s 2 Prescription Act 1832).

To establish a claim under the Act, the claimant must demonstrate:
- Uninterrupted enjoyment for at least 20 years, counted backwards from the date of the action (s 4 Prescription Act 1832).
- Short interruptions to the user are permitted, but any interruption lasting more than a year stops time running. If such an interruption occurs, the claimant must restart the 20-year period.
- However, if the interruption lasts longer than a year, the doctrine of lost modern grant may assist.

Question 27

How is an easement enforceable by the dominant owner, particularly when the dominant land changes ownership?

Answer 27

• The dominant owner must have the benefit of the easement to enforce it.
• Between original parties, a properly created easement is always enforceable by the dominant owner against the servient owner.
• When the dominant land is transferred, the benefit of the easement, being part of the land, passes with the land.
• This applies whether the easement is legal or equitable and whether the land is registered or unregistered.
• The benefit will always pass with the dominant land, allowing the new dominant owner to enforce the easement.

Question 28

What are the enforceability rules for express legal easements in registered and unregistered land?

Answer 28

Registered land: A properly created express legal easement must be substantively registered to be enforceable against a new servient owner (LRA 2002, s 27(2)(d)).

Unregistered land: A properly created express legal easement is enforceable because “legal interests bind the world” (Mercer v Liverpool). On transfer of the servient land, the easement becomes an overriding interest noted on the servient land’s charges register (LRA 2002, Sched 1 para 3).

Question 29

How are implied legal easements enforceable against the servient owner in both registered and unregistered land?

Answer 29

Registered land: An implied legal easement will be an overriding interest if one of the following conditions is met (LRA 2002, Sched 3 para 3):
- The easement is within the new servient owner’s actual knowledge.
- It is obvious on a reasonably careful inspection of the servient land.
- It has been exercised within a year before the transfer of the servient land.

Unregistered land: An implied legal easement is enforceable as per the principle “legal interests bind the world” and is also an overriding interest on the first registration of the land (LRA 2002, Sched 1 para 3).

Question 30

How are express equitable easements enforceable in registered and unregistered land?

Answer 30

Registered land: An express equitable easement is enforceable against the grantor but must be protected by entering a Notice in the servient land’s charges register (LRA 2002, s 32).

If the Notice is entered, the easement is binding on a new owner (LRA 2002, s 29(2)). If not, the easement is not binding on a purchaser for value of the servient land (LRA 2002, s 29(1)).

However, volunteers (e.g. those gifted or inheriting land) are always bound (LRA 2002, s 28).

Unregistered land: An express equitable easement must be protected by entering a Class D(iii) Land Charge in the Land Charges Register at Plymouth (LCA 1972, s 2(5)(iii)).

If done, the easement is binding on a new owner (LPA 1925, s 198).

If not, it is not binding on a purchaser for money or money’s worth of the servient land (LCA 1972, s 4(6)), but volunteers are always bound.

Question 31

What remedies are available to a dominant landowner if their easement is interfered with?

Answer 31

If the dominant landowner’s easement is interfered with, they may seek the following remedies:
- Prohibitory injunction: To prevent further interference with the enjoyment of the easement.
- Damages: Either in addition to or in lieu of an injunction.
- Mandatory injunction: To remove an obstruction interfering with the easement.

Question 32

Provide a summary of easements.

Answer 32

Easements and profits are capable of being legal interests.

A deed is required to create an easement/ profit but they can be created informally.

There is no legal definition of an easement but Re Ellenborough Park sets out four
essential characteristics for an easement:
- There must be a dominant and servient tenement;
- The easement must accommodate the dominant tenement;
- The dominant and servient tenement must not be owner/ occupied by the same
person; and
- The easement must be capable of forming the subject matter of the grant

Unlike easements, profits can exist in gross so that only the servient land need be identified.

Easements can be implied by necessity, common intention, the rule in Wheeldon v Burrows and s 62 LPA to create legal easements.

Uninterrupted user for 20 years can create legal easements by prescription (30 years for
profits).