Chapter 3: Easements Flashcards
- Introduction to easements
Easement: An easement is a proprietary right to use land which belongs to somebody else.
The use is more limited than an exclusive right to occupy or use.
The person who receives the benefit of the easement is the grantee and their land, which is
benefitted by the easement, is the dominant tenement. The person who grants the easement land is the grantor and their land, which is burdened by the easement, is the servient tenement.
1.1 Legal easements
An easement is capable of being a legal interest in land if the duration of the right is equivalent to one of the two legal estates.
LPA 1925, s 1(2)(a): an easement […] for an estate equivalent to an estate in fee simple absolute in possession or a term of years absolute.
Example: easements that are capable of being legal in nature
- A right of way granted when part of freehold land is sold will be granted forever.
- A right of drainage granted in a five-year lease will be granted for the term of that lease.
1.2 Equitable easements
If an easement is not granted for the duration equivalent to a freehold or leasehold estate, it can
only be equitable. LPA 1925, s 1(3):
All other estates, interests, and charges in or over land take effect as equitable interests.
Example: Easements that are only capable of being equitable in nature
A right to park which is granted ‘until the alternative parking facility is completed’ can only be
equitable as it is not granted forever or for a set period of time. A right of storage ‘while the building works are being completed’ can only be equitable as the time it will take for the building works to be completed is uncertain.
1.3 Positive and negative easements
The overwhelming majority of easements are positive, in that they allow the holder to use the
servient land in a particular way.
Example: Positive easements
* A right of way allows the holder to use a driveway on neighbouring land.
* A right of drainage allows the holder to use the pipes under that land.
* A right to park allows the holder to drive onto and park on part of neighbouring land.
Negative easements are rare. They do not involve entering the neighbouring land, as the right
conferred can be enjoyed from the holder’s land.
Example: Negative easement
A right to light is enjoyed from the holder’s land and simply requires the servient landowner to
refrain from blocking the light to the dominant land. Note: there is no general right to light, but there can be a right to light through a defined aperture (ie a specific opening eg a window or conservatory).
1.4 Easements distinguished from other rights
There are other types of rights which can easily be confused with easements. In particular, it is important to be able to distinguish between a restrictive covenant and an easement
1.4.1 Quasi-easements
Where landowners use, for example, paths on their own land, they are not enjoying easements.
They are using the paths as owners of the land. However, the use of the paths could become easements if ever the land was divided. This nebulous or potential easement is called a quasi-easement.
1.4.2 Public rights
Public rights can be similar in scope to easements. The best example is a right of way.
However, instead of being exercised by an individual or particular body, the right by its nature is exercised by the general public.
1.4.3 Licences
A licence can authorise somebody to use land in the same way as an easement does. A licence is
not, however, a proprietary right in land: it merely confers a personal right which cannot be
enforced against a third party.
1.4.4 Profits a prendre
An easement does not confer on the holder the right to take anything, such as produce, animals, fish, or minerals, from the land. A profit a prendre confers such a right. The rules governing profits are very similar to the rules governing easements, however they are beyond the scope of this course.
1.4.5 Restrictive covenants
An easement confers a right over the servient land. As a consequence, the servient owner cannot do anything on the servient land which would interfere with the right. For example, the route of a right of way cannot be built upon. By contrast, the primary function of a restrictive covenant is to restrict what is be done on the servient land and is a promise to not do something on the burdened land eg build without consent.
1.5 Grants and reservations
A grant exists where a landowner sells or leases part of their land and gives to the buyer/tenant
an easement over the land which they have retained.
A reservation exists where a landowner sells or leases part of their land to a buyer/tenant, and
retains a right over the land sold or leased .
A reservation is strictly construed against the person reserving it, because they are in a position to
reserve exactly what is required and are assumed to have done so. Any attempt by the
seller/landlord to extend the right will fail. To interpret the right more widely would be to ‘derogate
from the grant’ that the seller/landlord has made to the buyer/tenant, in that the buyer/tenant has a lesser use of the land than originally envisaged. A grant exists where a landowner sells or leases part of their land and gives to the buyer/tenant an easement over the land which they have retained.
A reservation exists where a landowner sells or leases part of their land to a buyer/tenant, and
retains a right over the land sold or leased.
A reservation is strictly construed against the person reserving it, because they are in a position to
reserve exactly what is required and are assumed to have done so. Any attempt by the seller/landlord to extend the right will fail. To interpret the right more widely would be to ‘derogate from the grant’ that the seller/landlord has made to the buyer/tenant, in that the buyer/tenant has a lesser use of the land than originally envisaged.
Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9
Is a good example of how reservations are strictly construed.
Facts: Cordell sold development land and reserved a right of way over the estate road for the benefit of Cordell’s retained land. At the time there was an access way 12 feet wide serving Cordell’s retained land. Sometime later, Cordell sought a declaration that he was entitled to a right of way 28 feet wide at all times and for all purposes.
Held: If Cordell had needed such an extensive right of way, he should have specifically stated it in
the transfer deed, making sure that the reservation covered any future needs he may have. The
claim failed.
Example: Grant of easement
C owns a large piece of land which adjoins a main road.
C sells part of the land to D and retains the part of the land nearest the road.
In the transfer deed, C creates a right of way in D’s favour across the driveway on C’s retained
land.
Example: Reservation of easement
C owns a large piece of land which adjoins a main road.
C sells part of the land nearest the road to D and retains the rest.
In the transfer deed, C retains a right of way in C’s favour across the driveway on D’s land.
1.6 Express creation
Most easements, whether grants or reservations, are created expressly. They commonly arise
when land is sold or leased and are set out in writing in the transfer deed or lease. Easements can also be expressly created as part of a separate deal,
independent of a transfer or
lease.
1.7 Implied creation
Easements need not necessarily be expressly created. An easement may be deemed to have been created impliedly by one of several recognised methods.
If an easement is impliedly created, it is effectively written into the document from which it was originally omitted.
1.8 Prescription
Easements may also arise by prescription or ‘long use’.
Generally, an easement is claimed by prescription where it has been exercised over land for a
long time (at least 20 years), yet no express grant or reservation can be traced. Easements acquired by prescription are legal easements. If the right has the characteristics of an easement and has been exercised openly for the requisite length of time, the servient owner is deemed to have tolerated the creation of the easement.
There are three types of prescription:
(a) Prescription at Common Law
(b) Prescription under the doctrine of Lost Modern Grant
(c) The Prescription Act 1832
For all types, the basic criteria is:
Continuous user: ‘reasonably regular use’ by a freeholder or successive freehold owners
against a freeholder.
* As a right: the right must have been used without force, without secrecy and without
permission. Exercised ‘nec vi; nec clam; nec precario’.
Assessment focus point
You need to know that prescription will succeed under the Prescription Act 1832 if the user can prove uninterrupted enjoyment for the 20-year period. [No use for one year or more =
interruption]
Prescription: Case law examples
Mills v Silver (1991) Ch 271,
CA
Facts: Access to a farm was gained over a track on adjoining land from 1922 by the claimants and their predecessors. The track was used between 1922 and 1981 whenever it was dry enough, with the landowners’ knowledge. No express permission was ever granted. The claimants used the track infrequently between 1981 and 1985. In 1987 they tried
to lay stone along the track to make it passable in all weather. The landowners sued for trespass and the claimants claimed an easement by prescription.Access to a farm was gained over a track
on adjoining land from 1922 by the claimants and their predecessors. The track was used between 1922 and 1981
whenever it was dry enough, with the landowners’ knowledge. No express permission was ever granted. The claimants used the track infrequently between 1981 and 1985. In 1987 they tried to lay stone along the track to make it
passable in all weather. The landowners sued for trespass and the claimants claimed an easement by prescription.
Held
The court held that the use was
enough to form the basis of a
claim for an easement by
prescription – the right had
been used ‘reasonably
regularly’ and the track had
been used without force,
secrecy or permission.
Winterburn v Bennett [2017] 1
WLR 646
Facts: Customers and delivery drivers to a fish and chip shop used a car park on the adjoining land which belonged to the
local Conservative Club. The
Conservative Club had erected a sign and replaced it over time. The sign said that the car park was private and for the use of club patrons only.
Held
A claim for a parking easement
by prescription was rejected.
The use of the car park was not
‘as of right’, it had been used
by force.
1.9 Summary
- Easements are proprietary rights to use and enjoy land which belongs to somebody else.
- Easements can be legal interests in land if they are granted for a term equivalent to a freehold
or leasehold estate (ie forever or for a certain term). - Easements granted for an uncertain duration will only ever be equitable in nature.
Summary cont.
- Easements are generally positive enabling the holder to enter or use the servient land. Negative
easements are rare and do not involve entering or using the servient land. - Easements can be granted for the benefit of land sold to a buyer or let to a tenant. Easements
can also be reserved for the benefit of retained land. - Easements are usually created expressly in a document which complies with the relevant
statutory formalities. Easements can be created impliedly without writing, and will be implied
into a document. - Legal easements can be created by prescription where there is uninterrupted user for at least
20 years where the right has been exercised by a freeholder against a freeholder without force, secrecy or permission.
2 ‘Capability’ rules
2.1 Is a right an easement or just a licence?
As an easement is a very powerful right in land, there are strict tests which must be met before a
right can be recognised as an easement rather than simply a personal right. First, the right must be capable in principle of being an easement. It must satisfy the tests laid down in re Ellenborough Park [1956] Ch 131. Second, the right must not be prevented from being an easement by the presence of one of the ‘disqualifying factors’: additional compulsory expenditure by the servient owner; use which amounts to exclusive possession; or permission
2.1 Is a right an easement or just a licence?
Figure 3.4: Stages to determine whether a right claimed is an easement
Third, the right must have been acquired as an easement. This can be done in one of three ways:
* By complying with the statutory formalities for an express grant or reservation;
* By one of the recognised methods of implied acquisition; or
* By prescription, which is long use.
2.2 The capability rules: re Ellenborough Park
We will begin by considering the first stage: is the right capable of being an easement? In other
words, does it pass the tests set out by Evershed MR in re Ellenborough Park?
Key case: Re Ellenborough Park [1956] Ch 131
Facts: Land around Ellenborough Park was developed for housing. The conveyances of the
individual plots included the following right: […] full enjoyment at all times […] of the pleasure ground set out and made in front of the said plot of land […] in the centre of the square called Ellenborough Park. During the Second World War, the park was requisitioned and the War Office paid compensation for the loss of the land. The question was whether the owners of the plots and their successors had a legal easement to use the park. If they did, then when the park was requisitioned, they had lost a legal right for which compensation should be paid
Held/Judgement
Evershed MR said that to be an enforceable legal easement, the right must have the characteristics of an easement. Quoting Dr Cheshire’s Modern Real Property, he set out four essential characteristics of an
easement:
* There must be a dominant and servient tenement
* The right must accommodate the dominant tenement
* There must be diversity of ownership
* The right must ‘lie in grant’
The court applied these to conclude that the right to use the garden was capable of being an
easement
2.2.1 There must be a dominant and servient tenement
There must be two identifiable pieces of land: one which benefits from the exercise of the right
(the dominant tenement/land), and one which is burdened by its exercise (the servient
tenement/land) (London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]).
This means that an easement cannot exist ‘in gross’ Hawkins v Rutter [1892] 1 QB 668. It cannot
be exercised by the holder independently of the land: that would be a licence or personal right. An easement cannot exist unless there is a dominant tenement which benefits.
2.2.2 The right must accommodate the dominant tenement
The right must have some direct beneficial impact on the dominant tenement. Lord Oliver’s test
from a covenants case P&A Swift Investments Ltd v Combined English Stores Group plc [1989] is
helpful here. Useful questions to ask are:
* Does the right benefit any owner of the land?
* Does it cease to be of use once the dominant owner has parted with the land?
* Does the right make the dominant land a better or more convenient property?
* Does the right add value or amenity to the dominant land?
Hill v Tupper (1863) 2 H&C 121
The right claimed as an easement was a right to put boats on a
canal which adjoined the claimant’s land. The right did not accommodate the dominant tenement as it did not benefit the land itself: it simply benefitted the business which the claimant happened to carry out on the land.
Moody v Steggles (1879) 12 ChD 261
The court held that a right to hang a sign on an adjoining building which pointed down a side-street to the claimant’s pub was an easement. In this case, the court found that the sign benefitted a long-established business which had become the normal use of that land
Business is a necessary incident
Therefore, the question to ask is whether the business is a necessary incident to the use of the land, or is a completely unconnected business. If there is a nexus between the land and the
business run from the land, a right that benefits the business will also benefit the land.
Pugh v Savage [1970] 2 QB 373
For a right to accommodate the dominant tenement the dominant and servient land must be
sufficiently proximate to each other. Normally the dominant and servient land will be adjoining
but this need not be the case. In Pugh v Savage [1970] 2 QB 373 there was a right of way over
one field to get to another. There was a third field in the middle. The right of way was still held to
benefit the dominant tenement even though the dominant and servient tenements were not
adjoining. They were close enough for the dominant land to derive a benefit from the right.
2.2.3 There must be no common ownership of the two tenements
The dominant and servient land must be owned by different people. It is not possible for an owner to claim an easement over their own land: Roe v Siddons (1888) 22 QBD 224. Benefits enjoyed over one’s own land are called quasi-easements and are capable of becoming easements if the land is ever partitioned.
Ownership
‘Ownership’ could be ownership of a freehold or a leasehold estate. A landowner may own a freehold and sell part of that freehold to a buyer. Alternatively a landowner may own a freehold and lease part of that land to a tenant. In each case there is diversity of ownership. Conversely, if the dominant and servient land ever came back into common ownership, any easements enjoyed by the would be extinguished
Example
For example, if C owns the freehold of land and grants a lease of part of it to D, there is diversity of ownership, and C may grant easements to D. When D’s lease comes to an end, C is once again the sole freehold owner of all of the land. Any easements which existed for the benefit of the leasehold land will be extinguished.
Example
In the same way, if C owns the freehold of land and sells part of it to D, there is diversity of
ownership and C may grant easements to D. If C were to buy D’s land back again; or D were to buy C’s land, or E were to buy C’s and D’s land, the land is once again in sole ownership. Any easements which existed for the benefit D’s land would be extinguished.
2.2.4 The right must lie in grant
The right must be capable of forming the subject-matter of a deed.
In other words, the right must be:
* Granted by a capable grantor to a capable grantee
The person who grants the right must have the power to do so. They must be over 18 and own
the legal estate. The grantee must also be capable. For example, it would not be possible to
grant an easement to a group eg ‘the residents of village’ as the body of people can change.
* Capable of reasonably exact description
The nature and extent of the right must be clear enough for the court to know exactly what is
to be enforced, by reference to a plan for example. Rights that are too vague will not be
enforced. For example, a right to ‘a scenic view’ was rejected in William Aldreds Case [1610] 9
Co Rep 57b.
* Judicially recognised
The right should be within the general nature of rights traditionally recognised as easements.
Example
Examples of rights which have been judicially recognised as easements:
* Right of way: Borman v Griffith [1930]
* Right of drainage and other rights through pipelines: Atwood v Bovis Homes [2001]
* Right of support: Dalton v Angus & Co (1881)
* Right to use sporting and leisure facilities: Regency Villas Title Ltd v Diamond Resorts
(Europe) Ltd [2018]
* Right to use land for recreational purposes: Re Ellenborough Park [1956]
Dyce v Lady James Hay (1852)
Even if a right has not previously been recognised as an easement, it can still be capable of being
one as the list of easements is not exhaustive: Dyce v Lady James Hay (1852). The law develops gradually by analogy with previous cases. For example, parking rights developed from easements
of storage to easements in their own right, in recognition of their increasing importance
Phipps v Pears [1965]
However, a new type of easement must not be negative in nature. In Phipps v Pears [1965] a claim
for a new easement, a right to protection from the weather, was rejected. The court said that
recognising new negative easements would unduly restrict the servient owner’s use and desirable development of their land. The appropriate way to restrict development on sale of land would be to impose a covenant on the buyer not a negative easement.
2.3 Summary
To be capable of being an easement, the right must pass all four tests in re Ellenborough Park:
(a) There must be a dominant and servient tenement - a piece of land which benefits and burdens from the right.
(b) The right must accommodate the dominant tenement. Meaning the right must benefit the
land and not be personal to the dominant landowner. If a right benefits a business, it will
benefit the land if the business is connected to the use of the land. There must also be proximity between the dominant and servient land.
(c) There must be no common ownership of the dominant and servient land. Diversity of ownership can be achieved by sale or lease.
(d) The right must lie in grant. This means there must be a capable grantor/grantee; the right
must be capable of being described in words or by reference to a plan; and the right must be judicially recognised.
- Disqualifying factors
Once a right has satisfied the requirements of re Ellenborough Park, then in principle it is capable
of being an easement. However, there are three ‘disqualifying factors’ to consider. The presence of any one of these factors will prevent the right from being capable of being an easement, even though it has passed the re Ellenborough Park tests. The disqualifying factors have been refined over time, and the courts have found ways of mitigating the harshness of some of the tests, which means that rights cannot easily be defeated by a disqualifying factor.
The disqualifying factors are:
- The exercise of the right must not amount to exclusivepossession of the servient tenement.
- The exercise of the right by the dominant owner must not involve additional, unavoidable
expenditure by the servient owner. - The exercise of the right must not depend on permission being given by the servient owner.
3.1 No exclusive possession
In Re Ellenborough Park, Lord Evershed MR, said an easement must: […] not amount to rights of occupation or […] substantially deprive the owners of proprietorship of legal possession of the servient land. Easements are in essence limited rights to use the servient land. Of course, the existence of any easement interferes with the servient owner’s use of the servient land. For example, a right of way over land prevents the servient owner from using the land in such a way as to obstruct the exercise of the right.
3.1 No exclusive possession
If, however, the exercise of the right amounts to exclusive possession by the dominant owner, the right cannot be an easement because the use by the dominant owner is too intense. An easement is an interest, not an estate in land. In such a situation, the right could amount to a lease, or simply a personal licence to occupy. Where the servient owner cannot use the servient land at all it is clear that there is exclusive
possession by the dominant owner, and the claim for an easement will fail.
Not clear cut
However, most cases are not clear-cut, and the servient owner does retain some use of the
servient land. It can be difficult to decide in this situation whether the use by the dominant owner
amounts to exclusive possession. Unfortunately, there is no single judicially approved test for what
amounts to exclusive possession.
The two tests for what amounts to exclusive possession are:
(a) The ‘ouster principle’ from Batchelor v Marlow
(b) The ‘possession and control’ test from Moncrieff v Jamieson
The question has come before the courts chiefly in connection with parking rights which are being
claimed as easements.
Key case: Batchelor v Marlow [2003] 1 WLR 764 (The ‘ouster principle’)
Facts: Marlow had a right to park six cars on commercial land belonging to Batchelor from
8.30am until 6pm from Monday to Friday each week. Batchelor argued that this use was too intense to be capable of being an easement. At first instance the judge said that the use was limited in time and therefore did not amount to exclusive possession. The Court of Appeal applied the ‘reasonable use’ test, looking at the degree of use left to Batchelor.
Held
Held: Batchelor was left with no reasonable use of the land, so the right claimed could not be an
easement. The judge said that Batchelor had no reasonable use of the land either for parking
during the time the spaces were likely to be needed, or for any other purpose: His right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory.
Key case: Moncrieff v Jamieson [2007] 1 WLR 2620 (The ‘possession and
control’ test)
Facts: Moncrieff claimed a right to park on a cliff top on Shetland, which belonged to Jamieson.
Jamieson argued that Moncrieff’s use of the parking space amounted to exclusive possession.
Relying on the ouster principle, he argued that he had no reasonable use of the space left.
Lord Scott adopted a much more flexible test which favours the person claiming the easement.
Held: The use did not amount to exclusive possession. Lord Scott rejected the ‘reasonable use’
test, and instead proposed a test which asks whether the servient owner retains ultimate
possession and control of the servient land, subject to the reasonable exercise of the right. He said:
[…] sole use for a limited purpose is not, in my opinion, inconsistent with the servient owner’s
retention of possession and control or inconsistent with the nature of an easement.
Note. As this case was heard in Scotland, it is not binding in English law. It is persuasive legal
authority only
3.1.1 Exclusive possession: which test?
In terms of precedent, the ouster principle (also known as the ‘reasonable use test’) is binding law. This was acknowledged in Kettel v Blomfold Ltd [2012] EWCH 2901. In that case, the court applied the Batchelor test but in a ‘Moncrieff way’. The claimant claimed a parking easement. It was held that the servient owner had not been deprived of reasonable use (the ‘ouster’ test) because he could still do anything he liked on the parking area except interfere with the parking (the ‘possession and control’ test).
The test seems to be changing slightly to favour the person claiming the easement, as the
possession and control test makes it harder to defeat an easement on the basis of exclusive
possession.
Assessment focus point
Rights to store and rights to park typically raise issues with exclusive possession given the nature of these rights. Providing the servient landowner retains control of the space and is (theoretically) able to do anything with it (eg paint it) except interfere with the right (ie the parking/storage), then the right will probably not be disqualified in the circumstances.
3.2 No additional expenditure
If the exercise of a right by the dominant owner requires the servient tenement owner to spend
extra money, the right is disqualified from being an easement, as a positive obligation is inconsistent with the concept of an easement. On a related point, a servient tenement owner is not obliged to carry out repairs or maintenance to enable the dominant owner to enjoy an easement. Instead, they must allow the dominant owner onto the servient land to carry out any repairs at the dominant owner’s expense (Jones v Pritchard [1908] 1 Ch 630).
