Chapter 3: Easements Flashcards

Question

Held

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 4

* 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.

Answer 5

* 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.

Answer 6

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

Answer 7

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.

Answer 8

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?

Answer 9

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

Answer 10

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

Answer 11

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.

Answer 12

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?

Answer 13

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.

Answer 14

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

Answer 15

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.

Answer 16

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.

Answer 17

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.

Answer 18

‘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

Answer 19

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.

Answer 20

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.

Answer 21

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.

Answer 22

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]

Answer 23

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

Answer 24

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.

Answer 25

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.

Answer 26

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.

Answer 27

* 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.

Answer 28

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.

Answer 29

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.

Answer 30

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.

Answer 31

(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.

Answer 32

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.

Answer 33

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.

Answer 34

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

Answer 35

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.

Answer 36

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.

Answer 37

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).

Answer 38

In Regis Property Co Ltd v Redman [1956] QB 612 a right to supply of hot water was held not to be an easement as supplying hot water to the claimant meant that the servient owner was forced to spend money. In Rance v Elvin (1985) 50 P&CR 9 the court upheld an easement for a water supply even though the meter was on the servient land and the servient owner was solely responsible for the payment of bills. The court said the servient owner was obliged to allow the water through the pipes, and the dominant owner was liable under a quasi-contractual obligation to pay its share of the bill.

Answer 39

Express permission will almost inevitably be given when a right is first used. However, after the initial grant, the dominant owner must exercise the benefit as of right. Enjoying the benefit as of right is the essence of an easement. If the dominant owner asks for permission every time the right is exercised, it cannot be an easement.

Answer 40

Facts: The claimant claimed a right to park a van on the defendant’s land was an easement. The claimant had always moved his van if asked to do so by the servient owner. Held: The defendant was only exercising the right to park in so far as the servient owner permitted. In moving the van on request, the defendant was actually acknowledging that he did not park on the land as of right but by permission. There was no easement to park on the facts

Answer 41

If any one of these factors is present, the right cannot be an easement, it can only be a personal licence: * If the use amounts to exclusive possession * If the use requires additional payment by the servient landowner * If the use is exercised with permission

Answer 42

If a right is capable of being an easement and has not been disqualified, you must then consider if the right has 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. You should always look first to see if there has been express acquisition in the circumstances ie if the easement has been created expressly.

Answer 43

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.

Answer 44

Easements are very powerful proprietary rights. The fact that they exist necessarily affects the value and amenity of both the dominant and servient land. There is, therefore, like most interests in land, a high degree of formality that must be met to validly create the right (assuming it is of course capable of being an easement and is not disqualified on the facts).

Answer 45

The existence of a right of way adds value to the dominant land by enhancing accessibility; but the same right adversely affects the servient land. The servient owner cannot build over the route of the right of way and cannot block it. That will affect the value and amenity of the servient land.

Answer 46

Easements are capable of being legal interests in land providing they fall within the definition in LPA 1925, s 1(2), meaning they are created for a term equivalent to a freehold or leasehold estate. In effect, this means: * An easement granted or reserved potentially forever can be legal; * An easement granted or reserved for a set period can be legal; but * An easement for a period which is not ‘forever’ or a set time (ie for an uncertain period) can only be equitable.

Answer 47

A owns a large piece of freehold land which adjoins a main road. * A sells part of the freehold land to B. * In the transfer deed, A grants B a right of way across the driveway on A’s retained land. * There is no time limit to the easement. As it is granted for the benefit of B’s freehold land it is deemed to be granted for the equivalent of the freehold estate and potentially legal as it fits the definition in LPA 1925, s 1(2)(a).

Answer 48

* A owns a large piece of freehold land which adjoins a main road. * A grants a ten-year lease of part of the land to B. * In the lease, A grants B a right of way across the driveway on A’s retained land. * The right is deemed to be granted for the equivalent of the leasehold term (ten years) and potentially legal as it fits the definition in LPA 1925, s 1(2)(a)

Answer 49

* A owns a large piece of freehold land which adjoins a main road. * A sells part of it to B. B intends to construct a parking area on B’s land. * In the transfer deed, A grants B a right to park two cars on A’s retained land until six months after B obtains planning permission for alternative parking on B’s land. * The parking right is granted for a term that is neither forever or for a set period of time. It does not fit the definition in LPA 1925, s 1(2)(a) and can only ever be an equitable easement.

Answer 50

All expressly granted legal interests must be created by deed (LPA 1925, s 52). To be a deed, a document must comply with the formalities in LP(MP)A 1989, s 1. Where the servient land is registered, 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.

Answer 51

Easements for an uncertain term 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. Such easements 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). No substantive registration is needed for an equitable easement to exist.

Answer 52

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

Answer 53

The most common way to create easements either by way of grant or reservation is expressly. * To be an express legal easement: - The right must be granted or reserved forever or for a set period of time (LPA 1925, s 1(2)(a)). - It must be created by a deed (LPA 1925, s 52 and LP(MP)A 1989, s 1). - It must be substantively registered (LRA 2002, s 27(2)(d)).

Answer 54

* A purported legal easement which fails the above may be equitable if it complies with LP(MP)A 1989, s 2. * An easement which does not meet the definition in LPA 1925, s 1(2)(a) (ie it is for an uncertain term) can only be an equitable easement (LPA 1925, s 1(3)). * It must comply with the formalities in LPA 1925, s 53(1)(a) (ie in writing and signed by the grantor).

Answer 55

In circumstances where someone has not acquired an easement expressly, it may be possible for them to rely upon the easement having been impliedly acquired. There are four methods of implied acquisition: * Necessity; * Common intention of the parties; * The rule in Wheeldon v Burrows; and * LPA 125, s 62. If one of these methods applies, the easement will be implied into a document from which it was omitted, usually a transfer deed or a lease. If the easement is implied into a lease it will come to an end when the lease comes to an end; if it is implied into a transfer deed, then the easement will last along with the freehold. Each of these methods of implied acquisition will be considered in more detail below.

Answer 56

* Implied legal easements: an easement which is implied into a transfer deed or a legal lease is an implied legal easement as the easement takes its status from the status of the document it is implied into. * Implied equitable easements: if the easement were implied into a contract or an equitable lease it is an implied equitable easement.

Answer 57

This method of implied acquisition is available where someone is claiming to have been granted an easement impliedly. It is also theoretically possible, though rare, to find that an easement has been impliedly reserved by necessity for the benefit of the land that the seller or landlord is retaining. This method is of very narrow scope.

Answer 58

An easement will be implied by necessity where it can be shown that its existence is essential in order that any use of the dominant tenement can be made. It is not enough that the right in question merely adds to the enjoyment of the dominant tenement. The only type of easement which can be implied this way is a right of way to otherwise landlocked land. Without a right of way, the land cannot be accessed at all. Any other rights merely enhance the use of the land; they are not essential to it.

Answer 59

Stirling J: […] An easement of necessity is an easement without which the property cannot be used at all, and not merely necessary to the reasonable enjoyment of the property. The following cases demonstrate the narrow application of this method of acquisition

Answer 60

If there is an alternative access route, even if it is inconvenient or difficult, no easement will be implied by necessity, as in the case of Manjang v Drammeh as it was still possible to access the dominant land by river. The implied easement was not essential to be able to use the dominant land.

Answer 61

Easements will only be implied by necessity in the cases of landlocked land. In Pryce v McGuinness easements for drainage, sewerage and the supply of electricity were highly advantageous but not essential to be able to use the dominant land

Answer 62

In Adealon v Merton BC, where the seller sold land forming part of its property to the buyer without granting a right of way, no easement was acquired by necessity over the servient land as it was possible that a third party could grant a right of way over their neighbouring land to the buyer.

Answer 63

Necessity was given a wider interpretation in Sweet v Sommer where a right of way in a vehicle was implied by necessity, even though a right way on foot over the servient land already existed.

Answer 64

Sweet v Sommer concerned a domestic property. Due to historical conveyancing errors, the seller’s retained land had no vehicular right of way reserved, although it did have the benefit of a right of way on foot over the servient land. The claim for a vehicular right of way succeeded and the court did reserve a right of way implied by necessity. Reservations of implied easements by necessity are rare. The right of way was implied for vehicles even though the dominant landowner did have access over the servient land on foot. This case is important because it does appear to extend the scope of easements implied by necessity. The interpretation of ‘necessity’ is wider than previous cases. The court seems to be saying that land which is not accessible by vehicle is in effect incapable of being used. This represents a departure from the cases such as Manjang v Drammeh.

Answer 65

* An easement may have been impliedly granted or reserved by necessity (though the latter is rare). * An easement will only be implied by necessity where its existence is essential in order that the dominant tenement may be used. The only type of easement which can be implied this way is a right of way to otherwise landlocked land. Without a right of way, the land cannot be accessed at all. * Case law shows that easements will not be implied by necessity even if the alternative access is inconvenient or difficult, or if there is an alternative over a third party’s land, or if the easement is highly advantageous (rather than essential). * However, necessity has been given a wider meaning in the case of Sweet v Sommer, where a right of way was implied by necessity for vehicles, adding to the existing right of way on foot.

Answer 66

Easements can be implied into a transfer or lease to give effect to the common intention of the parties, even though the easement is not absolutely necessary for the enjoyment of the land. This method of implied acquisition is available where someone is claiming to have been granted an easement impliedly. It is also possible, though rarer, to find that an easement has been impliedly reserved by common intention for the benefit of the land that the seller/lessor is retaining.

Answer 67

This method has a narrow scope. An easement will be implied by common intention where land has been sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the easement sought. The parties must have had a specific intention that the land was to be used for a certain purpose in circumstances where a court is satisfied that the easement claimed is necessary to achieve that specific intention.

Answer 68

A general intention as to how the property should be used is not enough; the parties must intend for the property to be used in some definite and particular manner (Pwllbach Colliery Co Ltd v Woodman (1915)). In addition, an easement may be implied by the common intention of the parties when it is necessary for the enjoyment of some expressly granted easement. For example, a right to park in a parking space usually also requires a right of way to enable the holder of the right to reach the parking space.

Answer 69

This case perfectly illustrates how this method of implied acquisition works. A landlord granted a lease of basement premises to a tenant. In the lease there were two covenants: to use the basement premises only as a restaurant; and to comply with health and safety regulations. The lease was then sold to a new tenant and the freehold sold to a new landlord.

Answer 70

After an inspection, it was revealed that the basement premises needed to be connected into a ventilation system on the landlord’s retained land, in order to comply with Health and Safety regulations. It was essential to do this in order to continue to operate as a restaurant. There was no easement of ventilation in the original lease so the tenant, Wong, approached the landlord, Beaumont, who refused to allow the easement. Wong claimed that the easement should be implied into the original lease. The court allowed this.

Answer 71

In Wong v Beaumont, the purpose was use as a restaurant. The original landlord and tenant knew that the basement would be used as a restaurant as there was a covenant in the lease to use the basement as a restaurant only. The easement was essential. The premises could not operate as a restaurant without complying with Health and Safety regulations, and the ventilation was essential in order to comply with those regulations.

Answer 72

In Donovan v Rana [2014] EWCA Civ 9 an easement to provide services such as electricity and sewerage was implied where the common intention of the parties was that the plot in question was purchased as a building plot and would be developed as such. The plot had been sold with the benefit of planning permission for a single dwelling which was enough to show common intention.

Answer 73

Remember there must be a specific purpose, ie the parties must intend for the property to be used in some definite and particular manner. A general intention as to how the property is to be used is not sufficient.

Answer 74

In Wong v Beaumont Property Trust Ltd (1965) the easement was implied into the original lease as a grant by the landlord to the tenant. The court also said that the method could be used to imply a reservation in favour of the original seller or landlord.

Answer 75

In a situation where a seller or landlord wishes to rely upon an easement having been impliedly reserved by common intention, there is a heavy burden of proof to show that the specific easement was mutually intended. It would not be enough to show that the seller or landlord had openly exercised the right prior to the first transaction.

Answer 76

In Yeung v Patel [2014] EWCA Civ 481 the Court of Appeal refused to extend an express reservation relating to renewal of gas pipes across the servient land to include laying new pipes, because the claimant landlord had had two opportunities to reserve this expressly, in the original lease and in a later deed of variation of that lease.

Answer 77

* An easement may have been impliedly granted or reserved by common intention (though the latter is rare). * An easement will only be implied by common intention where: - The dominant land has been sold or leased for a specific purpose; - The purpose is known to both parties; and - The easement claimed is essential to achieve the common purpose.

Answer 78

* A general intention as to how the property should be used is not enough; the parties must intend for the property to be used in some definite and particular manner. * Where a seller or landlord wishes to rely upon an easement having been impliedly reserved by common intention, there is a heavy burden to show that the specific easement was mutually intended. * This method of acquisition is wider in scope than the rule in Wheeldon v Burrows or LPA 1925, s 62 as it operates to imply grants and reservations. It will imply legal easements into deeds and equitable easements into contracts

Answer 79

This method of implied acquisition is available where someone is claiming to have been granted an easement impliedly. It is not possible for an easement to have been impliedly reserved by the rule in Wheeldon v Burrows. The easement may be implied into a document from which it was omitted, either a transfer, lease or contract

Answer 80

In 1879, delivering his judgment in the case of Wheeldon v Burrows, Thesinger LJ said: […] On the grant by the owner of a tenement or part of that tenement as it is then used or enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.

Answer 81

An easement will be implied by the rule in Wheeldon v Burrows where an owner (A) of a plot of land sells or leases some of their land to an owner or tenant. The new owner or tenant will impliedly acquire as easements all those rights which A had previously exercised over the land it retains for the benefit of the land it has just sold/leased to the new owner/tenant. Prior to the sale/lease, these rights were enjoyed by A as ‘quasi-easements’. They were not ‘proper’ easements, as a person cannot have an easement over their own land.

Answer 82

The rule can only operate on a sale or lease of part when, immediately prior to the transfer or lease, there was a common owner and occupier of the whole. As soon as there is a division of ownership and occupation of the land, any ‘quasi-easements’ that existed at the time of the division can become full easements benefiting the land which has now become the dominant tenement, provided the requirements under this rule are met.

Answer 83

The right must have been continuous and apparent. Both elements must be satisfied. To be continuous, the right need not have been enjoyed constantly or incessantly, but there must be some degree of permanence. The right must not have been transitory or intermittent.

Answer 84

To be apparent, there must be some clue as to the existence of the right from a careful inspection of the land. An easement cannot be seen - it is an intangible right - but there can be evidence on the land that it exists, for example a track or a drain cover. The rights must be ‘necessary for the reasonable use of the land’. This test is met if the right enhances the land in some way. This seems to be a fairly easy test to satisfy, being much less strict than the tests for easements implied by necessity and the common intention of the parties.

Answer 85

The right must have been in use by the common owner at the date of transfer of lease. This means it must have been enjoyed as a quasi-easement by the seller or the landlord before the land was divided, at the time of the transfer or lease of the dominant land. This is a matter of fact. It does not mean that the right being claimed as an easement must have been in use immediately prior to the sale or lease of what is to become the dominant land, but it must be shown to have been enjoyed in the recent past, and that it is expected to be used again in the near future.

Answer 86

Since the operation of the rule in Wheeldon v Burrows can lead to easements being created without the parties involved having given due regard to them, in practice the rule in Wheeldon v Burrows is commonly expressly excluded from the relevant transfer, contract or lease.

Answer 87

In the case of Wheeler v JJ Saunders Ltd [1995] 3 WLR 466, the claimant bought a farmhouse, and the defendant bought an adjoining field from the same seller. There were two means of access to the farmhouse, one of which was across the defendant’s land. The access had been used as a quasi-easement when the farmhouse and the field were in the seller’s ownership.

Answer 88

The defendant blocked the access, and the claimant claimed an easement implied under the rule in Wheeldon v Burrows. The court held that although the other Wheeldon tests were met, the easement was not necessary for the reasonable enjoyment of the farmhouse as the other access was equally convenient.

Answer 89

* A seller owns two fields and uses an access road across one field to gain access to the other field from the road. There is common ownership and a quasi-easement exists. * The seller sells the dominant land without granting an express easement to the dominant owner to use the access road.

Answer 90

A right of way over the access road can be claimed using the rule in Wheeldon v Burrows. The conditions are satisfied as follows: * The right to use the access is continuous and apparent, it has been used reasonably regularly and there is evidence of it, the track. * The right is also necessary for the reasonable enjoyment of the dominant land because it enhances the land, it is more convenient than the alternative access. * Finally, the access was in use by the common owner (the now servient landowner) at the date of the transfer/lease. It was used by the seller before the land was divided.

Answer 91

The right of way would be implied into the transfer. As a transfer deed is a legal document, the right of way would be an implied legal easement. Note. The rule would also operate if the common owner sold the servient land to A and the dominant land to B contemporaneously.

Answer 92

* Where an easement has not been acquired expressly, it may have been impliedly acquired by the rule in Wheeldon v Burrows. * This rule, together with the LPA 1925, s 62, will imply the grant of an easement (where one has not been expressly granted) but not the reservation of an easement.

Answer 93

* The starting point is that there is a common owner at the date of the transfer, contract or lease, who is enjoying ‘quasi-easements’ over their own land. * The requirements are that the right being claimed is continuous and apparent, is necessary for the reasonable enjoyment of the dominant land and in use by the common owner at the date of the transfer or lease.

Answer 94

* This rule will imply legal easements into deeds and equitable easements into contracts. * In practice, the operation of the rule in Wheeldon v Burrows is expressly excluded from transfers, contracts and leases.

Answer 95

This method of implied acquisition is available where someone is claiming to have been granted an easement impliedly. It is not possible for an easement to have been impliedly reserved by the LPA 1925, s 62. It will only imply an easement into a conveyance (ie a deed), in other words. It will not imply an easement into a contract.

Answer 96

The LPA 1925, s 62 states that: […] a conveyance of land includes all easements, rights and advantages enjoyed with that land. In this context, the word ‘conveyance’ means a transfer or lease of land by deed. The traditional or ‘ordinary’ interpretation of this statutory provision is that it is a word-saving provision. It ensures that when someone buys freehold land or leases land, the buyer or tenant will receive the benefit of (amongst other things) all existing easements which affect that land, whether they have been expressly or impliedly granted.

Answer 97

Using what could be termed the ‘upgrade’ effect, the LPA 1925, s 62 has also been given a much wider function: it has been interpreted as a method by which a brand-new easement can be implied into a document. This may well be an unintended effect of the original draftsmen, but it has nevertheless become a recognised method of acquiring an easement impliedly. It is known by some as the ‘upgrade’ method because it operates to ‘upgrade’ informal rights into full legal easements. The case of Wright v Macadam [1949] 2 kb 744 demonstrates how the ‘upgrade effect’ works.

Answer 98

Facts: Mrs Wright was the tenant of part of a house owned by Mr Macadam. During her tenancy, Mr Macadam gave Mrs Wright informal permission to store coal in part of his shed which was on his retained land. This arrangement was perfectly amicable. When Mrs Wright’s lease came to an end, Mr Macadam granted a new one by deed. The new lease did not mention the use of the shed for storage. When Mr Macadam then tried to charge Mrs Wright for the use of the shed, she claimed she had an easement to use the shed which she could exercise without payment.

Answer 99

Held: The court found in her favour and said that the LPA 1925, s 62 operated to imply the informal right to use the shed into the new lease as a full legal easement. It is not clear why an informal permission should not simply be implied into the new document as an informal permission, but the judge in the case was quite clear on this point. Jenkins LJ said that ‘a ‘right’ permissive at the date of the grant may become a legal right upon the grant by the force of the general words’ in the LPA 1925, s 62.

Answer 100

The last three requirements are sequential, so there must firstly have been prior diversity of the two pieces of land, meaning part of the land is leased or the land is divided by transfer. Following this division, an informal permission is granted. At this point, the right is just a licence, nothing more. However, if there is then a subsequent conveyance of the dominant tenement (eg a new lease when the existing lease expires), the informal permission is upgraded to an easement at this point and implied into the conveyance (ie the new lease).

Answer 101

The reason the implied easement is legal is that LPA 1925, s 62 only applies to deeds (either transfer deeds or leases by deed). As an implied easement takes its status from the status of the document it is implied into, the implied easement is legal.

Answer 102

As you can see from Wright v Macadam, LPA 1925, s 62 operated in a situation where land had previously been divided. It operated where Mrs Wright was an existing tenant, and after the start of her tenancy the informal permission was granted to her. This interpretation of the statute is of course controversial and the operation of the LPA 1925, s 62 in this respect is excluded as a matter of routine in property deals, to avoid any unintended consequences!

Answer 103

The requirement of prior diversity of occupation under the LPA 1925, s 62 was for many years thought to be a pre-requisite for this method of implied acquisition to work. However, more recent cases of P&S Platt v Crouch [2003] EWCA Civ 1110 and Wood v Waddington [2015] EWCA Civ 538 have held that the requirement for prior diversity of occupation of the dominant and servient land is not necessary where the right is continuous and apparent. These cases have therefore applied LPA 1925, s 62 to a different set of circumstances

Answer 104

Note that the LPA 1925, s 62 still operates in Wright v Macadam situations. The recent cases have merely widened the scope of the statutory provision even further.

Answer 105

In practical terms, the impact of the P&S Platt v Crouch interpretation of LPA 1925, s 62 is that LPA 1925, s 62 can be used in the same set of circumstances as the rule in Wheeldon v Burrows, when the land has been divided for the first time ie there is no prior diversity of occupation. In fact, as you will learn below, using LPA 1925, s 62 in this situation is easier for a claimant than the rule in Wheeldon v Burrows because there are less requirements to satisfy. In particular, it is not necessary to show the right is ‘necessary to the reasonable use of the 'land’ ie enhances it in some way.

Answer 106

The limit of LPA 1925, s 62 (and the reason the rule in Wheeldon v Burrows has not become obsolete) is that it only can be used where there is a ‘conveyance’ (ie a legal lease or transfer deed) whereas the rule in Wheeldon v Burrows can imply an easement into a contract.

Answer 107

Facts: The Crouch family owned a hotel on the riverbank in the Norfolk Broads, and an island midstream. The family and the hotel guests used to moor boats on a jetty on the shore of the island. This use of the jetty was not by way of easement, as the family owned the island. Instead, the use could be said to be a quasi-easement, which might be enjoyed by way of easement if the hotel and the island ever came to be in separate ownership.

Answer 108

The Crouch family sold the hotel to Platt, but retained the island. The transfer deed by which the freehold of the hotel was transferred to Platt did not contain any easement relating to the island presumably because the Crouch family did not want the buyer or the hotel guests to use the island in future.

Answer 109

Held: The court held that the LPA 1925, s 62 did not simply operate on pre-existing landlord and tenant situations; it also applied to quasi-easements which are ‘continuous and apparent’, and implied them into the transfer or lease when the land was first divided. This means that any quasi-easement which was enjoyed with the hotel was implied into the transfer deed for the benefit of Platt’s land when the hotel was sold.

Answer 110

The two sets of rules relating to the ‘upgrade’ effect of the LPA 1925, s 62 are therefore: (a) When there is prior diversity of occupation, in other words landlord and tenant situations like in Wright v Macadam. In these cases the easement is implied when the lease has expired and the land is re-let to the same tenant; or to a different tenant; or may even be sold to the same or a different owner.

Answer 111

(b) It also applies to quasi-easement situations like P&S Platt v Crouch to imply the easement into the first lease or transfer deed. The right must be continuous and apparent. This means the right must have been exercised recently and regularly, and there must be some expectation that it will be used regularly in the future. And, there must be some physical evidence of the exercise of the right – such as a track for a right of way; or a manhole cover for a right of drainage.

Answer 112

* Where an easement has not been acquired expressly, it may have been impliedly acquired by the LPA 1925, s 62. * This rule, together with the rule in Wheeldon v Burrows, will imply the grant of an easement but not the reservation of an easement.

Answer 113

- A Wright v Macadam situation where the land has been divided before the informal permission is given, and the permission becomes an easement when the leased land is then re-let or sold; or - A P&S Platt v Crouch situation where the land is divided for the very first time by lease or sale of part, if the right is continuous and apparent.

Answer 114

* This rule will only imply legal easements into a conveyance ie a transfer deed or legal lease. It will not imply an easement into a contract. Therefore, all easements implied by the LPA 1925, s 62 are implied legal easements. * In practice, the operation of the LPA 1925, s62 is expressly excluded from transfers and leases.

Answer 115

Once it has been established that a right is capable of being an easement and has been acquired as an easement that is not the end of the story. What happens if the dominant or servient land has been sold? Is it enforceable by and against a new owner of the land? If enforceable, what remedies are available to the dominant landowner who has been deprived of their right?

Answer 116

In order to enforce an easement, the dominant owner must have the benefit of the easement and thus the ability to sue. As between the original parties, a properly created easement is always enforceable by the dominant owner against the servient owner.

Answer 117

If the dominant land changes hands, the benefit, which is part of the land, passes with the transfer of the land. It does not matter whether the easement is legal or equitable, or whether the land is registered or unregistered: the benefit will pass with the dominant land.

Answer 118

‘Land’ includes […] an easement, right, privilege, or benefit in, over or derived from land […]

Answer 119

A conveyance of land shall be deemed to include and shall by virtue of this Act be deemed to convey, with the land, all […] easements, rights and advantages whatsoever […]

Answer 120

A properly created express legal easement will always be enforceable against a new servient owner as it must be substantively registered in order to be a legal easement.

Answer 121

A properly created express legal easement will be enforceable as ‘legal interests bind the world’ (Mercer v Liverpool, St Helen’s and South Lancashire Railway Co (1903)). However, since the LRA 2002, on transfer of the servient land (which triggers compulsory first registration) the express legal easement will be an interest overriding the first registration of the servient land and will become noted on the charges register of the newly registered servient land (LRA 2002, Sched 1 para 3).

Answer 122

An implied legal easement will be an overriding interest LRA 2002, Sched 3 para 3 provided that: * The easement is within the actual knowledge of the new owner; or * It is obvious on a reasonably careful inspection of the servient land; or * It has been exercised within a year before the transfer of the servient land.

Answer 123

An implied legal easement is enforceable in the same way as an express legal easement over unregistered land ie under the principle ‘legal interests bind the world’ and as an overriding interest on first registration of the land.

Answer 124

A properly created express equitable easement will always be enforceable against the grantor but must be protected in order to be enforceable against a new servient owner.To be protected, a notice must be entered in the charges register of the servient land (LRA 2002, s 32). If this is done, then this makes the easement binding on a new owner of the servient land (LRA 2002, s 29(2)). If this is not done, the easement is not binding on a purchaser for valuable consideration (LRA 2002, s 29(1)). A volunteer/donee (ie someone who is gifted or inherits the land) will always be bound, whether the interest is protected or not (LRA 2002, s 28). This is the normal rule of priority.

Answer 125

Properly created express equitable easements over unregistered land must be protected in order to be enforceable against a new servient owner. To be protected, a Class D(iii) Land Charge must be entered in the Land Charges Register at Plymouth (LCA 1972, s 2(5)(iii)). If this is done, then this makes the easement binding on a new owner of the servient land. If this is not done, the easement is not binding on a purchaser for money or money’s worth of a legal estate in the servient land (LCA 1972, s 4(6)). A volunteer/donee will always be bound.

Answer 126

Where there is an implied equitable easement, whether the servient land is registered or unregistered, the method for protection and rules on enforceability are exactly the same as for express equitable easements. The problem is that it if someone has the benefit of an implied equitable easement, it is highly unlikely that they would ever consider that they have to protect their interest in some way: it is illogical to expect someone to protect an interest formally when the interest itself arose completely without formality. An implied equitable easement is therefore vulnerable to being defeated when the servient land is sold.

Answer 127

If someone stops a party using a valid and enforceable easement, the following remedies are available: * Prohibitory injunction to prevent interference with the enjoyment of the easement. * Damages in lieu of injunction or in addition to it. * Mandatory injunction to remove obstruction.

Answer 128

* The benefit of an easement passes to a new dominant owner via the operation of LPA 1925, s 62 enabling the dominant owner to sue. * Express legal easements are automatically binding: - In registered land due to substantive registration. - In unregistered land because of the principle legal interests bind the world.