Acquisition and Abandonment of Easements

Question 1

Acquisition

Answer 1

Grant

Reservation

Presumed

Question 2

Grant

Answer 2

Servient owner A grants right over their own land to the dominant owner B (Neighbour)

Can be express or implied

Question 3

Reservations

Answer 3

The dominant owner B sells part of their land to A and reserves rights over (servient) land transferred to A

Can be express or implied (although implied is very rare)

Occurs where you have land which is subsequently divided and the owner wants to have the benefit of the easement

Question 4

Presumed acquisition

Answer 4

Where the right arises by long user; prescription

When you acquire an easement by long user, there is the presumption that it has been granted. The law presumes that it has been granted (i.e. created by deed) and thus it is legal

Long user prescriptive easements are always legal

Question 5

Express grant and reservation

Answer 5

The usual formalities apply

• Legal easement made by deed: s52 LPA
• Protection: must be registered to operate at law: s27(2d) LRA, otherwise the easement only has effect in equity
  
  • Equitable easements should be entered as a notice under s32 LRA on the register to protect it
  • Equitable easements may arise because of a lack of formalities (no registration, no deed used) but where there is:
    
    • A specifically enforceable contract [S2 LMPMA + Walsh v Lonsdale]
    • Proprietary estoppel [Crabb v Arun DC]

Question 6

Implied grant and reservation

Answer 6

• Arise where the land is divided and sells a part
• In certain circumstances, A will impliedly grant B rights in the deed of transfer
• Because these rights may be implied into the deed of transfer, they are legal easements
  
  • They are against (in the case of a grant) or in favour of (in the case of a reservation) the transferor
• They are not express, and so they do not come under the registration requirements in s27 LRA (only for express rights)
• They are overriding interests (p3 sch3 LRA) but not if at the time of the disposition
  
  • If the easement is in the actual knowledge or is obvious in inspection, then it will be an overriding interest
  • If the purchaser does not know about it, but the easement is obvious, they are bound by the overriding interest
  • If the easement isn’t obvious, but the purchaser knows about it, they are bound by the overriding interest

Question 7

Methods of implying grants

Answer 7

Necessity

Common intention

The rule in Wheeldon v Burrows

s62 LPA

Question 8

Necessity

Answer 8

• Access would be impossible without it
• Nickerson v Barraclough: if your land is cut off entirely so that you cannot access it without going over the transferors land, the law will imply into the deed of transfer that they granted the access over their own land
• Necessity is about access
• Those implied grants can only be implied against the person selling the property
• Land must be inaccessible and not just difficult to get to [Manjang v Drammeh]
  
  • Absolute, physical inaccessibility, you can be expected to go by water
• Test: not whether the easement is necessary for the reasonable enjoyment of the land, but whether the land can be used at all without it
• Any use, even if not the intended use, will rebut the presumption [Walby v Walby]
  
  • Strictly about whether you can set foot on the property

Question 9

Common intention

Answer 9

The intention the courts will construe that the parties had at the time of the transfer

About the use to which the dominant tenement intended. If this use cannot be achieved without an easement, the court will find one by common intention

Question 10

Wong v Beaumont

FACTS

Answer 10

the landlord of the building granted a lease to the tenants for the use of the basement as a restaurant. During the tenancy, the health and safety requirements were changed, and changed to a requirement that Mr Wang have a vent that goes up through the building. The landlord did not want the fumes going through the shaft

Was there an implied grant of easement at the time of the lease to use the airshaft (have an easement through the shaft)?

Question 11

Wong v Beaumont

HELD

Answer 11

• Yes, because the intention was to use the basement as a restaurant, and he could do so at the beginning without using the vent. To be able continue using the basement as a restaurant, the court implied that at the time of the grant, all that was needed for it to be a restaurant
  
  • Everything that he needed to do in order to keep the premises as a restaurant was implied in the grant
• LJ Salmon: “if a lease is granted which imposes a particular use on the tenant and it is impossible for the tenant so to use the premises legally unless an easement is granted, the law does imply such an easement”

Question 12

The rule in Wheeldon v Burrows

Answer 12

• “Quasi-easement”: when an owner uses one part of her land for the benefit of another before dividing the land and transferring the ‘quasi-dominant’ part
• Conditions: the user must be
  
  • Continuous and apparent
  • Reasonably necessary
    
    • Reasonably necessary is wider than strictly necessary [Millman v Ellis]
  • Possible to use at the date of the transfer
    
    • Need only be possible, not in fact used at the time

Question 13

s62 LPA

Answer 13

• Capable of creating new rights
  
  • Can turn licences into easements without the intention of the parties being that by implying it into the deed of transfer
  • S62 turns the permission into an easement by implying it into the deed transferring the freehold or creating the lease
• Louise Tee: it used to be that we would use word saving provisions to create new rights where it was clear that the parties intended to create new rights. S62 creates new rights even where it is not the intention of the parties to do so
• This only works if the claimed use could be an easement within the Re Ellenborough requirements

Question 14

Conditions for the operation of s62

Answer 14

• Prior diversity of occupation (but not of ownership)
  
  • There needs to be one owner but different occupiers
• The easement is possible at the date of transfer
  
  • The use precedes the transfer

Question 15

Wright v Macadam

FACTS

Answer 15

Tenant puts her coal in the landlord’s coal storage facilities with his permission. The original landlord sold the freehold to someone else, but before that he renewed the lease. The new owner did not want her to store her coal in the shed

Question 16

Wright v Macadam

HELD

Answer 16

• Because she had stored the coal in the landlord’s land, even under licence, and the lease was renewed, that is a conveyance for the purposes of s62
  
  • S62 turned the storage into an easement, so when the new landlord came along there was nothing he could do about it because she had a proprietary right to store her coal there
• Per Tucker LJ: “a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into it under s62, even although down to the date of the conveyance the right was exercised by permission only, and therefore was in that sense precarious”

Question 17

Goldberg v Edwards

FACTS

Answer 17

E leased annexe to tenant G. She gave G the privilege of accessing the annexe through her house. Eventually, an outside access was built, but G continued using entry through the house. Edwards wished to stop G from entering through the house. G claimed an implied easement under Wheeldon

Question 18

Goldberg v Edwards

HELD

Answer 18

• The claim failed because the route through the house was not reasonably necessary for the enjoyment of the annexe, and therefore it was only a personal ‘right’
• However, there was no such requirement for s62 to operate, and so the personal right became a proprietary right under the statute
  
  • There is nothing in s62 which says that the easement must be absolutely necessary
• As long as the right could constitute an easement and was useable at the time of the conveyance, it came within s62 and will become an easement

Question 19

Golberg wider than Wheeldon

Answer 19

• Ward v Kirkland*: no clear path showing that entry to servient land was apparently used to repair cottage on dominant land; however, it could pass with title under s62
• Platt v Crouch*: you do not need to have diversity of occupation
• Campbell v Banks*: use need not be necessary for the claim to succeed, but evidence of use must be presented by claimant (here no evidence that bridleway was used)

Question 20

Goldberg overlap with Wheeldon

Answer 20

• In Platt v Crouch and Wood v Waddington, the Court considered that where there was a conveyance, as long as the easement was continuous and apparent, there was no need for prior diversity of occupation for s62 to operate
  
  • It can operate even in the case of a quasi-easement
• However, with s62 there is no need for the easement to be reasonably necessary, as there was in Wheeldon

Question 21

Implied reservation

Answer 21

• Pwllback Colliery v Woodman, per Lord Parker obiter: “the law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties … but, it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner”
• Strictly controlled - Re Webb’s Lease (a butcher claimed reservation of a right to put a sign on neighbouring land): no implied reservation where there is no necessity or no proof that the specific easement was commonly intended
• Adealon International v Merton: an implied reservation will be possible where the retained dominant land is landlocked without an easement
  
  • Otherwise, since reservation is in the transferor’s (i.e. person claiming reservation) power, it is expected that if he requires an easement, he will expressly reserve it
  • If it is a question of necessity and accessibility, the law will imply a reservation where you have failed to do so
• Walby v Walby: the failure to reserve the right of drainage did not make the property unusable
  
  • They could still access the property

Question 22

Express release

Answer 22

release by deed

Question 23

Implied release

Answer 23

• Merger of titles: where estates merge in a single title, the easement ceases
• Abandonment
  
  • Moore v Rawson: “if the party who has acquired the right once ceases to make use of the light and air which he had appropriated to his own use, without shewing any intention to resume the enjoyment, he must be taken to have abandoned the right”
    
    • Owner of a house bricked up windows, neighbour built very close, owner now wanted to open up windows and sue for lack of light
  • Tehidy Minerals v Norman: to show abandonment there must be evidence of “a fixed intention never at any time thereafter to assert the right” again
  • Ben v Hardinge: mere non-use does not mean abandonment. Here, 175 of non-use did not amount to abandonment
  • Williams v Sandy Lane: extinguishment when easement becomes impossible not just inconvenient. Here, the claimant had blocked her way by putting up a mini fence in order to keep her dogs in