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).
3.2 No additional expenditure
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.
3.3 No permission
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.
Green v Ashco Horticultural Ltd [1966] 1 WLR 889
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
3.4 Summary
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
- Express acquisition
4.1 Introduction to acquisition
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.
4.2 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.
4.2 Express creation
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).
Example
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.
LPA 1925, s 1(2)
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.
Examples: a right capable of being a legal easement
Example 1
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).
Example 2
- 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)
Example: a right that can only be an equitable easement
- 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.
4.3 Express legal easements: formalities
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.
4.4 Express equitable easements: formalities
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.
4.5 Failed legal easements may be equitable
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.
4.6 Summary
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)).
4.6 Summary
- 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).
- Implied acquisition
5.1 Introduction to implied acquisition
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.
5.1.1 Status of implied easements
- 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.
5.2 Implied by necessity
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.
5.2 Implied by necessity
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.
Union Lighterage Company v London Graving Dock Company 1902
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
5.2.1 Manjang v Drammeh (1991) 61 P. & C.R. 194
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.
5.2.2 Pryce v McGuinness [1966] Qd R 591
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
5.2.3 Adealon International Property Ltd v Merton BC [2007] EWCA Civ 362
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.
5.2.4 Sweet v Sommer [2005] EWCA Civ 227
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.
5.3 Necessity: a wider meaning?
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.
5.4 Summary
- 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.
- Implied acquisition by common intention
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.
6.1 Common intention: meaning
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.
General Intention
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.
Key case: Wong v Beaumont Property Trust Ltd [1965] 1 QB 173
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.
Key case: Wong v Beaumont Property Trust Ltd [1965] 1 QB 173
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.
Purpose
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.
Example
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.
Assessment focus point
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.
6.2 Common intention and reservations
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.
6.2 Common intention and reservations
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.
Yeung v Patel [2014] EWCA Civ 481
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.
6.3 Summary
- 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.
Summary
- 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
- Implied acquisition under the rule in Wheeldon v
Burrows
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
7.1 The rule in Wheeldon v Burrows: meaning
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.
7.1 The rule in Wheeldon v Burrows: meaning
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.
7.2 Wheeldon v Burrows: requirements
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.
7.2 Wheeldon v Burrows: requirements
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.
7.2 Wheeldon v Burrows: requirements
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.
7.2 Wheeldon v Burrows: requirements
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.
7.2 Wheeldon v Burrows: requirements
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.
Example: ‘Necessary for the reasonable use of the land’
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.
Example: ‘Necessary for the reasonable use of the land’
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.
Example: The rule in Wheeldon v Burrows
- 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.
Example: The rule in Wheeldon v Burrows
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.
Example: The rule in Wheeldon v Burrows
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.
7.3 Summary
- 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.
7.3 Summary
- 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.
7.3 Summary
- 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.
- Implied acquisition under LPA 1925, s 62
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.
8.1 The ordinary effect of LPA 1925, s 62
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.
8.2 The upgrade effect of LPA 1925, s 62
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.
Key case: Wright v Macadam [1949] 2 kb 744
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.
Key case: Wright v Macadam [1949] 2 kb 744 Judgement
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.
Last three requirements
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).
8.3 LPA 1925, s 62 explanation: Wright v Macadam
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.
Wright v Macadam, LPA 1925, s 62
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!
8.4 LPA 1925, s 62 further explanation: P&S Platt v Crouch
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
Assessment focus point
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.
P&S Platt v CrouchP&S Platt v Crouch
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.
Limit of LPA 1925
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.
Key case: P&S Platt v Crouch [2003] EWCA Civ 1110
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.
Key case: P&S Platt v Crouch [2003] EWCA Civ 1110
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.
Judgement
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.
8.5 The two effects of the LPA 1925, s 62
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.
8.5 The two effects of the LPA 1925, s 62
(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.
8.6 Summary
- 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.
LPA 1925, s 62 can be used to imply an easement in two situations:
- 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.
Summary
- 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.
- Enforceability of easements and remedies
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?
9.1 Enforceability by the dominant owner
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.
9.1 Enforceability by the dominant owner
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.
LPA 1925, s 205(ix):
‘Land’ includes […] an easement, right, privilege, or benefit in, over or derived from land […]
LPA 1925, s 62(1):
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 […]
9.2 Express legal easements: enforceability against the servient owner
9.2.1 Registered land
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.
9.2.2 Unregistered land
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).
9.3 Implied legal easements: enforceability against the servient owner
9.3.1 Registered land
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.
9.3.2 Unregistered land
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.
9.4 Express equitable easements
9.4.1 Registered land
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.
9.4.2 Unregistered land
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.
9.5 Implied equitable easements
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.
9.6 Remedies
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.
9.7 Summary
- 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.
