5. Easements

Question 1

Define an easement?

Answer 1

An easement is a right over someone else’s land, which can be either positive or negative.

Question 2

Give an example of a positive easement?

Answer 2

You must pay to fix a fence.

Question 3

Give an example of a negative easement?

Answer 3

A right of light or air through a defined aperture.

Question 4

Do courts oppose positive or negative easements?

Answer 4

Courts largely oppose negative easements.

Question 5

What are the parcels of land involved in easements called and how many must there be?

Answer 5

There must be two tenements, called the dominant tenement and the servient tenement.

Question 6

In easements, which is the dominant tenement and which is the servient tenement?

Answer 6

The dominant tenement enjoys the benefit of the easement.
The servient carries the burden of the easement.

Question 7

Which case set out the exceptions to the rule that an easement must not involve the servient owner in any expenditure? What was the case about?

Answer 7

Rance v Elvin [1985]. It stated that an easement granting a free flow of water through a defined channel wouldn’t be recognised where it depended on the servient owner having to pay water bills and maintenance costs.

Question 8

An easement must not involve the servient owner in any expenditure – what are the exceptions?

Answer 8

See Rance v Elvin [1985] for context.

1) There can be an easement to fence, including maintaining or repairing fencing (which means the servient owner must spend money). In Crow v Wood [1971] a claim for trespass failed as she was at fault for not maintaining the fencing so the sheep could enter onto and damage her land.

2) There can be an easement to keep the common parts of a building clear and well maintained. In Liverpool City Council v Irwin [1977], the council (landlord) had to repair and maintain corridors, staircases and rubbish chutes, meaning they had to spend money doing so. The tenants (dominant) had a right to use the spaces (dominant), so council were servient.

Question 9

How are easements different from restrictive covenants?

Answer 9

Although restrictive covenants developed from negative easements, there are differences.

1) Easements can be positive or negative, restrictive covenants can only be negative, preventing the use of the land in some way.
2) Easements are rights relating to use OVER land, restrictive covenants relate to use OF the land.
3) Easements may be either legal or equitable (s1 LPA 1925). Restrictive covenants can only be equitable.

Question 10

How are easements different from profits a prendre?

Answer 10

Easements relate to use OVER land, (a privilege without profit).
Profits a prendre is a right to TAKE FROM land.

Also, profits can exist in gross, whereas easements cannot (e.g. there must be a dominant tenement, a piece of land to benefit from the right).

Question 11

How are easements different from licences?

Answer 11

A licence is a permission to be on land without trespassing.

Easements are proprietary rights and can bind third parties. Licences cannot, they can only bind original parties through contractual rights, but it won’t bind anyone else.

Licences can exist in gross, whereas easements cannot (e.g. there must be a dominant tenement, a piece of land to benefit from the right).

Question 12

How are easements different from local customary rights?

Answer 12

Indefinite and fluctuating class of persons, such as the inhabitants of a village, could claim rights over the land of another by custom, e.g. right of way or right to dry fishing nets.They wouldn’t be able to claim the right of an easement because there is no capable grantee.

Question 13

How are easements different from natural rights?

Answer 13

The existence of natural rights does not depend on some form of grant, nor can they be extinguished by unity of seisin (the ownership of both tenements).

E.g. A natural right to support, from their neighbour’s land as will support their own land (free from buildings). The right to have buildings supported by land or other buildings can be acquired as an easement.

E.g. A natural right to the natural drainage of percolating (draining) water from higher ground to lower ground exists. Although the owner of the lower ground is not obliged to receive the flow of natural water.

Question 14

How are easements different from public rights?

Answer 14

Public rights: right to pass along a public highway, fish in the sea, navigate over the foreshore, the right to roam (Countryside and Rights of Way Act 2000).

Public rights exist by virtue of the general law and can exist in gross, whereas easements cannot (e.g. there must be a dominant tenement, a piece of land to benefit from the right).

Question 15

What are the four essential characteristics which all easements must possess following Re Ellenborough Park [1956]?

Answer 15

(1) There must be a dominant and servient tenement.

(2) The easement must accommodate the dominant tenement.

(3) The dominant and servient tenements must be owned or occupied by different persons.

(4) The right claimed must be capable of forming the subject matter of a grant.

Question 16

Explain (1) There must be a dominant and servient tenement from Ellenborough Park [1956]?

Answer 16

An easement cannot exist in gross, there must be a dominant and servient tenement. A person can’t be a tenement, e.g. Fred is the owner of the dominant tenement and owns *** piece of land. Always state which is the dominant tenement and which is the servient tenement.

Question 17

Explain (2) The easement must accommodate the dominant tenement from Ellenborough Park [1956]?

Answer 17

The easement must benefit the dominant tenement or the right enhances the value of the property. Commercial or business advantages won’t usually give rise to easements as they are purely for personal benefit. E.g. Hill v Tupper [1863], canal boats.

Question 18

Why is Hill v Tupper [1863] relevant to the Ellenborough Park rule 2?

Answer 18

Hill v Tupper [1863] provides a classic example of a purely personal advantage, not capable of being an easement. Here, an owner of both the land on the bank of a canal and the bed of the canal leased the land on the bank to Hill and gave him the exclusive right to put his pleasure boats on the canal. Subsequently, Tupper put rival pleasure boats on the same stretch of water. Hill sued him and the question arose as to whether Hill had an easement, or merely a licence. It was held that the right was a personal licence only, because it was acquired in order to take advantage of a business enterprise rather than benefit the land on the bank itself. Being merely a personal licence, it was unenforceable against anyone except the licensor, the canal owner.

Question 19

In which exceptional situation would a commercial right be held as an easement?

Answer 19

A commercial right may benefit the land if all occupiers of that land will find it useful. 3 examples:

Moody v Steggles [1879] a pub advert stayed on a house as it was useful for all.
Re Webb’s Lease [1951] a matches advert was ordered to be taken down from a butcher’s shop.
P & S Platt Ltd v Crouch [2003] an easement of a right to use river mooring by hotel guests was granted.

Question 20

Why are dominant and servient tenements usually attached/joining/neighbouring?

Answer 20

In order to accommodate the dominant tenant, the right must be connected with the use and must improve the usefulness or amenity of the dominant tenement.

Question 21

Explain (3) The dominant and servient tenements must be owned or occupied by different persons from Ellenborough Park [1956]?

Answer 21

An easement is a right over somebody else’s land - you cannot have an easement over your own land.

Question 22

What is the exception to (3) The dominant and servient tenements must be owned or occupied by different persons from Ellenborough Park [1956]?

Answer 22

It is possible for an easement to be acquired where two tenements are owned by the same person, but occupied by different persons. ‘A tenant may claim an easement over his landlord’s land’.

Question 23

Explain (4) The right claimed must be capable of forming the subject matter of a grant from Ellenborough Park [1956]?

Answer 23

This has 3 requirements:

A) There must be a capable grantor and grantee
B) The right must be sufficiently definite
C) The right must be within the general nature of rights capable of existing as easements.

Question 24

Explain (4a) There must be a capable grantor and grantee from ‘The right claimed must be capable of forming the subject matter of a grant’?

Answer 24

Both the grantor and grantee must have the power to grant and accept the grant of an easement.

The grantor (servient owner) must be fully competent and of full legal capacity (i.e. not a corporation - an artificial legal person - who doesn’t have the power to grant an easement).

The grantee (dominant owner) cannot be a fluctuating group of persons (e.g. the inhabitants for the time being of Gateacre village - this would be a local customary right), but must have the power to accept the grant of an easement.

Question 25

Explain (4b) The right must be sufficiently definite from ‘The right claimed must be capable of forming the subject matter of a grant’?

Answer 25

The right must not be uncertain or vague - it must be capable of definition.

Question 26

List 5 rights that are not sufficiently definite for an easement and 3 rights that are?

Answer 26

Too vague and do not count as easements:
A right to privacy
A right to a general flow of air over land to a windmill
A general right to light
A ius spatandi (a right to wander at will across land)
A right to receive a television signal

Certain and count as easements:
A right to a flow of air through a defined opening, that is, a ventilation shaft
A right to light through a defined aperture, e.g. a window
A right of way along a defined path (as opposed to ius spatandi)

Question 27

Explain (4c) The right must be within the general nature of rights capable of existing as easements from ‘The right claimed must be capable of forming the subject matter of a grant’?

Answer 27

The easement must follow the nature of what has been decided about easements in past cases. Although the courts are reluctant to create new easements, a new easement will be recognised if it is analogous or similar to an existing easement. As the world develops, new easements will need to be recognised.

Question 28

Is the right to be protected from the weather an easement?

Answer 28

No, it is not.

Question 29

Is the right to cultivate flower beds an easement?

Answer 29

Yes, it is in Mulvaney v Gough [2003] (not a key case).

Question 30

Can rights which prevent the servient owner from carrying on some activity be easements?

Answer 30

Rarely, but yes. These are negative easements.

E.g. a right to light through a defined aperture involves preventing the servient owner from building on that servient land.

Another e.g. would be an easement of support which acted mutually between adjoining buildings, preventing demolishing a building, although this would not be wholly negative.

Question 31

Can a right be an easement if it amounts to joint user or exclusive possession?

Answer 31

o, an easement is a right over someone else’s land - you cannot prevent the servient owner from being able to use the land as well.

E.g. Copeland v Greenhalf [1952] where D claimed that he had a right to park on a strip of land which belonged to P. The strip itself was not all that large. Practically, D is claiming the whole beneficial user of the strip of land. That is not a claim which can be established as an easement, being virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner.

Question 32

Can car parking and rights of storage amount to an easement? Make notes on the case law in this area.

Answer 32

Copeland v Greenhalf [1952] - narrow strip, parking for 50 years, joint user
Newman v Jones [1982] - car not parked in designated space or permanently, easement granted.
London & Blenheim Estates Ltd v Ladbroke Retail Parts Ltd [1994] - cars parked on servient land can be easement with the test being whether the servient owner still had reasonable use of their land.
Batchelor v Marlow [2001] - claim for prescriptive right, 6 cars, dominant owner would have full use of 9-6pm Mon-Fri parking, servient owner’s use of their land would be illusory. No easement.

Question 33

If a right prevents or interferes with the use of the land by the servient owner but is not exercised constantly, would that be an easement?

Answer 33

Yes, that may exist as an easement.

Question 34

Outline Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018]?

Answer 34

Appellants owned a mansion and estate, respondents owned timeshare apartments on land within the estate. Respondents were claiming the free use of all the sporting and recreational fasciitis in the mansion and grounds by means of an easement. The case relied upon whether such recreational rights could be claimed as easements.

Supreme Court confirmed requirements of an easement from Re Ellenborough Park:
(1) There must be a dominant and a servient tenement.
(2) The easement must accommodate the dominant tenement.
(3) The dominant and servient owners must be different persons.
(4) A right over land cannot amount to an easement, unless it is capable of forming the subject matter of a grant.

1 and 3 were already accepted.

2 - Appellants said that a grant of rights which accommodated land could not be an easement unless the enjoyment of the rights was subordinate to the enjoyment of the dominant tenement. The Supreme Court disagreed and held that, provided the rights were for the benefit of the dominant tenement, it did not matter that the enjoyment of those rights was the primary reason why people were attracted to acquiring rights, such as timeshares units, in the dominant tenement.

4 - The right had to be defined in sufficiently clear terms. The Supreme Court held that because the right accommodated the dominant tenement, the fact that it was a right to use recreational and sporting facilities did not prevent it from being an easement.

Question 35

Explain why the ouster principle was denied in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018]?

Answer 35

The appellants had argued that under the ouster principle the servient owner would be deprived of possession and control of the servient land. This would happen if the servient owners stopped maintaining the facilities and the dominant owners had to “step-in” and take control.

The Supreme Court rejected this argument for two reasons. First, the ouster question was decided by looking at who was intended to manage, control and maintain the servient tenement at the date of the grant. This would be the owners of the leisure facilities. Second, step-in rights gave reasonable access for maintenance of the servient tenement but only sufficiently so as to enable the rights to be used, therefore the question of ouster did not arise.

Question 36

What does ‘mere passivity’ mean in relation to Regency Villas v Diamond Resorts [2018]?

Answer 36

In looking at “mere passivity” the court held that where the parties shared an expectation that the servient owner would manage and maintain the facilities this was not incompatible with an easement.

Question 37

What was the judgment in Regency Villas v Diamond Resorts [2018]?

Answer 37

In summary, the court said that provided the four conditions were satisfied the grant of a purely recreational or sporting right over land which accommodated adjacent land could be the subject matter of an easement. It was held that there was a right to use such recreational and sporting facilities as existed from time to time. The Supreme Court saw the grant as a single comprehensive right to use a complex of facilities, including any additional or replacement facilities, and this did not fall foul of the perpetuity rule.

Question 38

What are the essentials of an easement from Re Ellenborough Park?

Answer 38

1) Must be a dominant and servient tenement. See London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
2) The easement must accommodate the dominant tenement. See Hill v Tupperm Moody v Steggles, P&S Platt Ltd v Crouch
3) The tenements must be owned or occupied by different persons
4) The easement must be capable of forming subject matter of grant
a) Capable grantor and grantee
b) Right sufficiently defined. See William Aldred’s Case, Browne v Flower, Webb v Bird
c) The right must be capable of existing as an easement
i) NB problems with car parking and storage.

Question 39

What are the first two questions when acquiring an easement?

Answer 39

Is the right claimed capable of being an easement? This question can only be answered by looking at the essential characteristics of an easement and seeing if they have all been met. Assuming that the right claimed is capable of being an easement, the next question is How, if at all, has it been acquired?

Question 40

What is the difference between a “grant” and a “reservation” of an easement?

Answer 40

Easements can either be given (granted) by the owner of the land or taken (reserved) by the owner of the land.

Question 41

What are the options of how to grant an easement?

Answer 41

Easements can be granted by statute, or by express, implied or presumed grant.

Question 42

Provide two situations where easements can be found in statute?

Answer 42

1) In local Acts of Parliament. E.g. the right to support for a canal constructed under a local Act would be granted by means of an easement.
2) Statutory easements in favour of public utilities, e.g. water, gas, electricity, sewers, for the provision and maintenance of the services.

Question 43

How are express grants of easements usually made?

Answer 43

By including express words of grant into a conveyance of the legal estate, either in law or in equity.

Question 44

Are express grants of easements made in law or in equity?

Answer 44

They can be both. If created by deed and equivalent to a term of years absolute or a fee simple absolute in possession, the easement will be legal under s1(2)(a) LPA 1925. If the easement is created in writing, and such writing meets the requirements of s2 Law of Property (Miscellaneous Provisions) Act 1989, the easement will be equitable.

Question 45

Give an example of an access easement?

Answer 45

Rights in favour of the buyer (granted for the benefit of the property):
“A right of way for the buyer and his successors in title to pass and repass at all times with or without vehicles over the accessway shown coloured in yellow on the Plan subject to the buyer paying one half of the cost of maintenance of the accessway”.

Question 46

Give an example of a service easement?

Answer 46

Rights in favour of the buyer (granted for the benefit of the property):
“A right to use the drains under the land retained by the seller along the route marked with a blue broken line on the Plan”.

Question 47

What is an implied grant of an easement?

Answer 47

An implied grant of an easement is where the grant is not an express grant in a deed or a contract.

Question 48

What are the four main ways in which a grant of an easement may be implied in favour of the buyer of land?

Answer 48

1) Necessity
2) Common intention
3) The rule in Wheeldon v Burrows [1879]
4) s62 LPA 1925

Question 49

When can a grant of easement be implied due to necessity?

Answer 49

An easement will only be implied by necessity where the estate cannot be used at all without it.

Question 50

How must an implied easement of necessity be granted?

Answer 50

The easement must be implied into a deed. (In equity)

Question 51

Give an example of an implied grant of easement by necessity?

Answer 51

One situation is where the land purchased is landlocked. If the buyer cannot get to their land because it is surrounded by land retained by the seller, they are entitled to a right of way over the land retained by the seller.

Question 52

What happens if someone seeks an implied grant of easement by necessity, but there is an inconvenient alternative right of way?

Answer 52

An easement of necessity will not be implied unless the easement is essential. No easement will be allowed if there are alternative rights of way, however inconvenient they may be.

Question 53

Give an example of a case where there was an inconvenient alternative right of way who was seeking an implied grant of easement by necessity?

Answer 53

In Titchmarsh v Royston Water Co [1899] an easement of necessity was refused as the claimant was not completely landlocked – he did have an access to the highway for himself and his vehicles, albeit down a 20-foot embankment!

Question 54

Why is Nickerson v Barraclough [1981] an important case in necessity?

Answer 54

Where the original grant had made it clear that there would be no rights of way implied, an easement of necessity could not be claimed on the grounds of public policy. So, an easement of necessity will be vulnerable to express wording in the grant demonstrating a contrary intention.

Question 55

Outline Wong v Beaumont Property Trust Ltd [1965] - restaurant, flow of air, necessity?

Answer 55

In Wong v Beaumont Property Trust Ltd [1965] premises were to be used as a restaurant. An implied easement of necessity of a right to a flow of air through a ventilation pipe leading into the retained premises of the lessor was granted. It was necessary to imply the easement; otherwise, the premises could not be used for the purpose for which it was granted.

Question 56

What would happen if a right of way was granted for all purposes connected with the use and enjoyment of the building, but did not extend to digging up the land to install pipes to the property?

Answer 56

In Donovan v Rana [2014] the Court of Appeal implied an easement of necessity to lay and maintain drains and pipes for a new dwelling-house. A right of way had been expressly granted “for all purposes connected with the use and enjoyment of the [building plot] but not for any other purpose” over the burdened land. An easement to lay the pipes was implied. It was held that laying pipes for services would be for the use and enjoyment of the new house.

Question 57

What is an easement of support and when will it be implied by necessity?

Answer 57

An easement of support is implied where an owner disposes of one of two adjoining properties. An easement of support is implied otherwise the properties will not stand without the other.

Question 58

When can a grant of easement be implied due to common intention?

Answer 58

Easements may also be implied in favour of a grantee of land where it is necessary in order to give effect to the common intention of the parties.

Question 59

How must an implied easement of common intention be granted?

Answer 59

The easement must be implied into a deed. (In equity)

Question 60

Explain Davies v Bramwell [2007] with regards to an implied grant of common intention - garage, ramp.

Answer 60

In Davies v Bramwell [2007] the court found an implied easement of common intention. Land had been sold with the intention that it would be used as a garage for the repair of cars. A ramp was needed in the garage to repair the cars. The cars could only be driven on to the ramp safely if they were driven across a piece of land that had been kept by the seller. Both parties knew the land conveyed would be used as a garage, which included the use of the ramp, and so an easement of a right to drive across the piece of land kept by the seller based on common intention was implied into the deed of sale.

Question 61

Which case could have been decided by either an implied grant of easement by necessity or common intention?

Answer 61

Wong v Beaumont Property Trust Ltd might equally have been decided on the basis of common intention as it was on the basis of necessity.

Question 62

Give an example apart from Wong that illustrated the overlap between easements of necessity and easements of common intention?

Answer 62

The apparent overlap between easements of necessity and easements of common intention is further illustrated by Liverpool City Council v Irwin [1977]. Here, a tenant living on the ninth floor of a 15-storey block of flats had an easement to use the stairs and lifts. This easement was implied in the absence of any express agreement. It must have been intended by the parties that the tenant would be able to reach his ninth-floor flat.

Question 63

Will implied grants of easements by common intention be vulnerable to express wording?

Answer 63

Yes, an easement of mutual intention will be vulnerable to express wording in the grant demonstrating a contrary intention (Nickerson v Barraclough [1981]).

Question 64

Which maxim is the rule in Wheeldon v Burrows [1879] based on?

Answer 64

“A grantor may not derogate from his grant”.

Question 65

What does ‘a grantor may not derogate from his grant’ mean and where does it come from?

Answer 65

It comes from the rule in Wheeldon v Burrows [1879]. It means that they cannot grant land to another upon such terms that the grantee receives less than they were promised.

Question 66

What is a quasi-easement and what happens to it once the land is sold?

Answer 66

An owner cannot have an easement over their own land. Where they have used one part of it in a particular way, for example, by crossing a field to reach the main road, their practice of doing so is described as a quasi-easement, a use of the land that resembles an easement. If the owner later sells their land to another, such quasi-easements that exist at the time of sale may, by implication, become easements proper in favour of the land granted, which will then be the dominant land. This means there should be a person who:
(a) is in common ownership and occupation of land to start with; and
(b) then divides the land, selling the dominant part and retaining the servient part.

Question 67

What must a quasi-easement be in order for the rule in Wheeldon v Burrows to operate?

Answer 67

(a) the quasi-easement must be “continuous and apparent”; OR
(b) it must be “necessary to the reasonable enjoyment of the property granted”; AND
(c) at the time of the grant, it must have been used, or being used by the grantor for the benefit of the part of the land granted (i.e. unity of seisin/possession)

Question 68

Explain what continuous and apparent mean in (a) the quasi-easement must be “continuous and apparent” when talking about the rule in Wheeldon v Burrows.

Answer 68

An easement is continuous if it is exercised passively, that is, with no need for positive action on the part of the dominant owner. However, rights of way can’t be ‘continuous’, the owner must walk along it. Rights of way are often granted this way though. It is more relevant for things like a right to light or ventilation.

An easement is apparent if it is in some way obvious. E.g. in one example, the right to enter a neighbour’s land to maintain a wall was not apparent and did not pass under Wheeldon v Burrows, but a right of way evidenced by a worn track was recognised in a different case.

Question 69

What will the seller’s conveyancer usually put in the ‘additional provisions’ section of the transfer of part to ensure that the property being sold only benefits from those rights specified in the transfer?

Answer 69

A note to exclude the application of the rule in Wheeldon v Burrows and s62 LPA 1925.

Question 70

Are both (a) the quasi-easement must be “continuous and apparent” and
(b) it must be “necessary to the reasonable enjoyment of the property granted”; required to benefit from the rule in Wheeldon v Burrows?

Answer 70

No, it appears that this requirement is an alternative to being continuous and apparent – both requirements probably need not be met. If a right is necessary to the reasonable enjoyment of the land, it is very likely to satisfy the continuous and apparent requirement.

Question 71

How similar is (b) it must be “necessary to the reasonable enjoyment of the property granted”; when talking about the rule in Wheeldon v Burrows to ‘Necessity’, another way of being granted an implied easement?

Answer 71

The requirement of being “necessary to the reasonable enjoyment of the property granted” is not as strict as “necessity” and is not necessarily a high threshold. See Goldberg v Edwards [1950] where a right was successfully granted by a landlord to a tenant to use a corridor - it was not necessary to the reasonable enjoyment of the land as the tenant had an alternative right of way to her flat, but the tenant still was able to use the entrance - the right claimed was merely one of convenience.

Question 72

What does seisin mean?

Answer 72

Possession of land.

Question 73

What does unity of seisin mean in relation to the rule in Wheeldon v Burrows?

Answer 73

The rule can apply only where the quasi-dominant and servient tenements were originally owned and occupied by the same person.

Question 74

Regarding the rule in Wheeldon v Burrows, when will the creation of an easement be legal and when will it be equitable? Give a case example.

Answer 74

Wheeldon v Burrows applies not only to the creation of easements on conveyance of part of the land by the original owner (in which case a legal easement will be created because the easement is implied into the conveyance, the deed of sale), but also to a contract to convey part of the land. In this case, only an equitable easement can be implied.

In Borman v Griffith [1930] an equitable lease to occupy part of a large estate was granted to the claimant. He was able to claim that he had an easement to use a private road through the estate to the leased premises. An equitable lease is treated as a contract to create a legal lease – an equitable easement was therefore implied. The claimant was successful in his claim even though he had an alternative right of access. This was because the alternative right of access was unsuitable for his business use and so the private road was necessary for his reasonable enjoyment of the land.

Question 75

Can Wheeldon v Burrows be used when the common owner sells all his land, retaining none of the land himself? Give a case example.

Answer 75

Yes, but the sales must be simultaneous. Schwann v Cotton [1916] is a good example. A testator in his will had divided his land into two plots, devising Plot A to X and Plot B to Y. An underground pipe ran across Plot A to Plot B and it was held that a right to the free passage of water which flowed through the pipe passed by implication to Y, the devisee of Plot B – the dominant tenement. The rule can only apply where all the sales or grants are made at the same time by the common owner.

Question 76

Will implied grants of easements from the rule of Wheeldon v Burrows be vulnerable to express evidence of a contrary intention?

Answer 76

The rule in Wheeldon is vulnerable to evidence of a contrary intention (Squarey v Harris-Smith [1981]). Here, a standard term in a contract for sale excluded implied rights and so no implied easement could be found.

Question 77

What is s62 LPA 1925?

Answer 77

s62(1) provides that every conveyance of land will include, with the land, building, easements, rights etc. The rights will be automatically transferred with the conveyance to the buyer unless the conveyance contains express words excluding them.

Question 78

S62 LPA 1925 can be used to create a new easement in two different situations. What are they?

Answer 78

1) where there is no diversity of ownership and occupation
2) where there is diversity of ownership and occupation.

Question 79

What was the traditional view about whether s62 could create new easements in the Wheeldon v Burrows scenario?

Answer 79

The traditional view was that s62 could not create new easements in the Wheeldon v Burrows scenario. For s62 to create new easements, there had to be some separation of ownership and occupation of the quasi-dominant and servient tenements prior to the conveyance.

Question 80

What changed that allowed s62 to create new easements in the Wheeldon v Burrows scenario? I.e. where there is no diversity of ownership and occupation.

Answer 80

In P & S Platt v Crouch [2003] and also obiter in Alford v Hannaford [2011], it was said that s62 could operate without diversity of occupation. In Wood v Waddington [2015] the Court of Appeal held that diversity of ownership and occupation was no longer required to create an easement under s62 and so put an end to the diversity debate:

Question 81

Which conditions need to be met to create an easement where there is no diversity of ownership and occupation under s62 LPA 1925?

Answer 81

(a) the right must be continuous and apparent; and
(b) the use must have been for the benefit of the land conveyed.

The test for proving continuous and apparent use is the same for s62 as it is for Wheeldon. N.B. It is easier to use s62 rather than Wheeldon v Burrows as there is no need to prove “necessary to the reasonable enjoyment of the property” as required for Wheeldon.

Question 82

Describe a case where s62 succeeded at creating a new easement when Wheeldon v Burrows failed?

Answer 82

In Wood v Waddington [2015] the land had previously been owned by one person and had been sold off to the Woods’ predecessors in title and to Mr Waddington. The Woods, who now owned part of the land, wanted to use bridleways over Mr Waddington’s land on the basis that they were advantages enjoyed with the land transferred. It was held that there had been no express grant of a right of way, nor was there an implied grant under Wheeldon v Burrows because the rights of way claimed were not reasonably necessary to the enjoyment of the land belonging to the Woods. The court did find, though, that the bridleways were continuous and apparent as defined under Wheeldon v Burrows. On the first bridleway, the tracks were visible with sufficient signs of use on the ground and had been used once a month in the period preceding the sale, which was a sufficient pattern of use. The second right of way claimed was also continuous and apparent with evidence of vehicular use. The Woods were successful in their claim for easements of rights of way along both tracks on the land owned by Mr Waddington under s62.

Question 83

What effect did widening the scope on s62 in Wood v Waddington have on Wheeldon v Burrows?

Answer 83

The widening of the scope of s62 in Wood v Waddington has largely made Wheeldon v Burrows redundant.

Question 84

When there is diversity of ownership and occupation in quasi-dominant and servient tenements, when will s62 LPA 1925 apply?

Answer 84

Where:
(a) a tenant is allowed to go into occupation before a lease is granted and is then given a licence over the landlord’s land; or
(b) a lease is renewed after a tenant is granted a licence; or
(c) a tenant with a licence over their landlord’s land purchases the freehold of the landlord’s land.

Question 85

s62 uses the words ‘a conveyance of land’ - what does this mean in terms of how the purchase had to be carried out?

Answer 85

This means that the purchase of the freehold must be by deed, or the grant or renewal of the lease must be by deed, or the grant or renewal of the lease must be for three years or less created in a written agreement under s54(2) LPA 1925.

Question 86

What are prescriptive easements also called?

Answer 86

Easements of long user or a presumed grant.

Question 87

What are the differences between Wheeldon v Burrows and s62 in terms of easements and profits and conveyances/contracts?

Answer 87

s62 can apply equally to easements and profits, whereas Wheeldon v Burrows applies to easements only.
s62 operates only by way of conveyances (including mortgages, leases and assents), whereas Wheeldon v Burrows also applies to contracts to convey land. - ??

Question 88

What is an easement by prescription?

Answer 88

If it can be shown that there has been long user as of right, which is continuous and by and against the fee simple, then it is presumed that an easement was granted at some stage in the past.

Question 89

Are prescriptive easements made in law or in equity?

Answer 89

An easement by prescription must always be legal as the presumption is that the fictional grant was by deed.

Question 90

What are the requirements for any easement by prescription, that is, user as of right which is continuous and by and against the fee simple?

Answer 90

1) User as of right
a) Without force
b) Without secrecy
c) Without permission
2) Continuous user
3) User by the fee simple
4) User against the fee simple
5) The prescription period

Question 91

What does nec vi, nec clam, nec precario mean and in what context is it used?

Answer 91

Without force, without secret, without permission. An easement by prescription must be exercised nec vi, nec clam, nec precario. All elements must be met.

Question 92

What are the three methods of creating an easement by prescription?

Answer 92

1) Common law
2) Lost modern grant
3) Under the Prescription Act 1832 (PA 1832)

Question 93

What does ‘without force’ mean when discussing easements by prescription?

Answer 93

Without force includes actual physical violence to person or property, or ignoring of protests or threats of legal proceedings by the servient owner, as well as unlawful acts.

Question 94

Give an example of when ‘without force’ was taken into account when discussing easements by prescription?

Answer 94

In Winterburn v Bennett [2016] the customers of a fish and chip shop had used the neighbouring Conservative Club’s car park although a sign read “Private car park. For the use of club patrons only. By order of the committee”. There was a similar sign in the window of the club. The question was whether the right had been used without force. The person claiming the right must show that they have used it without violence and that its use was not contentious or allowed under protest. The Winterburns argued that the club had acquiesced in the right because it had not protested sufficiently. Any such protest had to be repeated and continuous. The question, therefore, was what constituted protest. Did the signs make the use contentious? The court held that the presence of the signs showed the club’s continuing objection to the parking. The servient owner did not have to put up a physical obstruction or take legal action to avoid acquiescing in the right even though the signs had been ignored. The signs were a proportionate protest. Anyone reading them would understand them. The unauthorised use of the land was not “by right” and so an easement could not be claimed.

Question 95

When will lost modern grant be used?

Answer 95

It can only be used if evidence of user for the common law prescriptive perido has been rebutted (e.g. evidence has been found since 1189, but there are still 20 years use) and PA 1832 cannot help.

Question 96

Which of the 3 ways to get a prescriptive easement require the years to be ‘next before action’?

Answer 96

Next before action means for the period of time immediately preceding the claim. This is only relevant for PA 1832 - the lost modern grant and common law easements can be shown at any time.

Question 97

What are the rules of the Prescription Act 1832?

Answer 97

20 years next before action - but can be defeated by any of the common law issues (force, secrecy, permission or unity of possession)

40 years next before action - unless agreed in deed or writing, or a REGULAR oral consent.

Question 98

What does the Prescription Act 1832 say about easements of light?

Answer 98

If the use of light to a building is used for 20 years without interruption, it is deemed absolute and indefeasible unless consent was granted by deed or in writing.

Unity of possession won’t hurt it and it can be against anyone, not just fee simple owner.

Question 99

How would a servient owner avoid the easement of light?

Answer 99

By registering a notice as a ‘notional obstruction’ and therefore interrupting the 20 years required.

Question 100

What are the two exception to the strict rule that easements cannot be implied in favour of a seller?

Answer 100

1. Necessity
2. Common intention

Question 101

Which easements are interests that override in registered land?

Answer 101

Implied easements:
1. Necessity
2. Common intention
3. Rule in Wheeldon v Burrows
4. s62 LPA 1925

Prescriptive easements
1. Common law
2. Lost modern grant
3. PA 1832

and

Implied reserved easements:
1. Necessity
2. Common intention

Question 102

What are the conditions for those easements to be interests that override?

Answer 102

1. The buyer knew about the easement
2. The easement was obvious
3. It had been used in the year before the transfer
4. It is registered under the Commons Registration Act

Question 103

How are equitable easement registered in registered land and unregistered land?

Answer 103

Registered: As a agreed or unilateral notice on the Charges Register
Unregistered: As a Class D(iii) land charge on the Land Charges Register

Question 104

How can an easement be extinguished?

Answer 104

1. By statue
2. By release (Express or Implied)
3. Unity of ownership/possession

Question 105

What does the Access to Neighbouring Land Act 1992 do?

Answer 105

For people who need access to Neighbouring land to carry out work on their own land. They can get an access order from the court.

Question 106

What are the risks of enlargement of easements?

Answer 106

Checking if it is ‘interference with an easement’, which is not allowed.

1. When dominant owner alters easement, servient owner have increased burden on their land (not allowed)
2. When servient owner alters easement, dominant owner is not left with reasonable and cannot continue their use (not allowed)

Question 107

What are the periods under the Prescription Act 1832 for profits a prendre?

Answer 107

30 and 60 years.

Question 108

Can profits a prendre be acquired in the same way as implied easements?

Answer 108

Yes: 2. common intention, 4. PA 1832

No: 1. necessity, 3. Rule in Wheeldon v Burrows

(They will be interests capable of overriding)