Creation of Express and Implied Grant of Easements

Question 1

An easement or profit is a legal interest of land provided that:

Answer 1

Must be correct duration (s1(2)(a) LPA 1925.

Correct way

1. Deed (52 LPA 1925
2. Statute
3. Prescription (20 years without objection by the landowner.

Question 2

Express reservation of easements

Answer 2

When a seller sells part of the land and creates an easement on a part that he retains.

Question 3

A clause relating to a express reservation of an easement is too vague.

Answer 3

Johnstone v Holloway, find this in favour of the dominant owner.

Question 4

Equitable easement

Answer 4

Easement created by deed for wrong duration e.g for life.

Easement created by deed but registration not yet competed

No deed but specifically enforceable agreement in writing.

Proprietary estoppel.

Question 5

Distinction between grant and reservation.

Answer 5

Granted
o When it is created by a landowner in favour of another person.

Reserved
o When a person selling land creates an easement over the land he is selling for himself.
o Only occurs where there is sale of part of someone’s land.

Question 6

Express grant or reservation

Answer 6

Unless there are words otherwise, the easement will be for the largest interest that the grantor can grant.

 ALWAYS CONSIDER AS AN OPTION EVEN IF IT IS AMBIGUOUS.

Can be very broad. Jelbert v Davis- “at all times, for all purposes”.

Question 7

Implied grant

Answer 7

Courts have decided that an easement will be granted presumed intentions of the parties and non-derogation from grant.
Occurs where there is division of land, formerly in common ownership. Implication of an easement in favour of a purchaser of part of the land or a tenant of part of the land e.g conveyance of fee simple (which would then be legal due to deed).
Can also have an easement implied through a contract (would be equitable only).

Question 8

Neccisty

Answer 8

 Nickerson v Barracloug-1CA

• Only arises where without it, the purchaser of land could not get to his land-must be landlocked

Sweet v Sommer
• Likely to only apply to rural locations that are
remote where vehicular access is necessary.

 Based on intention and can be excluded by the parties
(Adealon-CA). Not based on public policy.

Look at date of transfer to decide whether or not the land is landlocked. Needs to be a right to reach land-even if it is not a good right of access.

Issues arise where land is surrounded by seller’s land but
also a 3rd party’s land. Adealon- possibility of access over 3rd party land is irrelevant

Question 9

Intention

Answer 9

implied where land is sold or leased for a particular intended purpose and the purpose cannot be carried out without the easement.

Deals with intention of parties and can be excluded.
Wong v Beaumont (CA)
Sweet v Sommer
Nickerson v Barraclough (CA)

Implied into both deeds and contracts.

Question 10

Wong v Beaumont (CA)

Answer 10

Dealt with a lease for cellars to be used as a restaurant.

Business could only be lawfully carried out and comply with the lease with installation of ventilation system which would require duct on landlord’s property.

Held that an easement to that effect had been impliedly granted.

Question 11

Sweet v Sommer

Answer 11

Plot of land sold for building purposes.

Judge prepared to imply grant of a right of way for vehicles while it was being built.

Prepared to imply grant of a right of way for all
future vehicles of owners once it had been built. Land would not be usable without vehicular access-house at a large distance from shops or facilities.

Question 12

Nickerson v Barraclough (CA)

Answer 12

Court might be prepared to frustrate intention of the parties if it was contrary to public policy.

Question 13

Section 62 LPA 1925

Answer 13

o Word Saver-Implies certain words into a conveyance of land. There to ensure that all connected rights pass with the land.
o Also have the ability to create new easements out of what was a license (Wright v Macadam-converted license to use the shed into an easement to use the shed) and out of quasi-easements.
o Reverses burden of proof-Easements pass with the land unless there is intention to show otherwise.
o Must be a conveyance of land (Borman v Griffith)Qconveyance of fee simple and grant/assignment of a lease.

Cannot be used to imply an easement into a contract-contractual lease under Walsh v
Lonsdale. Only writes words into a conveyance-legal lease.

Question 14

Requirements of 62 LPA 1925

Answer 14

Actual use of a right for the benefit of the dominant tenement (Goldberg v Edwards (CA))
o Relevant time is the date of the execution
of the lease.
o Courts will look at reasonable period of time
before the conveyance.

Right must be of a nature that it can be an easement. (Green v Ashco)
o Right could not be an easement as
permission had to be sought everytime the person wanted to use the access.

Question 15

Ways an implied grant of easement is performed

Answer 15

1) Necessity;
2) Common Intention;
3) Wheeldon v Burrows; and
4) s62 LPA 1925.

Question 16

Rule in Wheeldon v Burrows (CA)

Answer 16

o Looks at what was previously done on the land.
o Quasi-Easement-Right that could be an easement if the two properties were in different ownership or occupation. These can be converted into easements on the division of land.
o Only applies for implied grant and not reservation.

Question 17

Implied Reservation

Answer 17

Much more limited-if somebody selling lands wants to reserve rights over the land he is selling then he must do it expressly.
Situations where easement can be impliedly reserved:Easement of Necessity (Wheeldon); Easement of Common Intention; and Reciprocal and Mutual easements.

If there are simultaneous conveyances of the two pieces of land, the rules of grant apply to both.

Question 18

Law Commission Proposals of implied reservation

Answer 18

Views implied creation as useful-allows creation of easements that would have been created except for oversight or ignorance. Ensures that land can be used and is marketable.

Feels that there is an unsatisfactory number of methods of implied grant

Proposals:
o No distinction between grant and reservation.
o Should be one statutory method of implied creation-implied
when it is necessary for the reasonable use of the land at the time
of the transaction unless the parties have expressly excluded it.
o S.62 should no longer operate so as to create new easements. Can be a trap for the unwary, converting an act of kindness into an easement.

Question 19

Remedies for interference

Answer 19

Dominant owner can seek either damages or an injunction. Must be substantial interference with his enjoyment of the easement.

Test: Interference with the reasonable use of a right of way (B & Q v Liverpool). If there is a gate1it depends on issues such as whether the dominant owner has a key and whether or not it is locked.

Celsteel v Alton (CA)
Saint v Jenner (CA)

Question 20

Celsteel v Alton (CA)

Answer 20

o Dealt with issue of narrowing the route of a right of way over a driveway past a petrol station to garages.
o Petrol station proposed a car wash which narrowed driveway by a half.
o Would prevent one of the tenants from reversing into the garage.
o Held to be substantial interference as reversing into garage was reasonable use of right of way. Prevented reasonable use.

Question 21

Saint v Jenner (CA)

Answer 21

o Dealt with installation of speed ramps over right of way along a lane.
o Held not to be substantial interference and servient owners entitled to safe use of the land.
o However, since then potholes developed.
o The combination of the speed ramps and the potholes
constituted substantial interference.

Question 22

Ancillary Rights

Answer 22

Dominant owner will acquire any ancillary rights necessary to its effective exercise and enjoyment.

Most common ancillary right is to repair the right of way.

Moncrieff v Jamieson

Question 23

Moncrieff v Jamieson

Answer 23

Only way to house was down a stairway-bounded by sea and cliff. Express grant of right of way of vehicles and pedestrians. Physically impossible to park on dominant land. If there was no way to park on servient land, the owners would have had to park on the road far away which was steep and exposed.
o Held on the facts that the right of way had ancillary to it a right to park.

Question 24

Extent of an easement

Answer 24

Courts will look at the extent of right of way when originally created in light of surrounding circumstances such as purpose and physical characteristics.
St Edmundsbury v Clark

Implied Easement-look at circumstances giving rise to the implication or whether there has been a radical change in the character of the use of the dominant tenement.
McAdams v Robinson (CA)
Jelbert v Davis

Question 25

St Edmundsbury v Clark

Answer 25

o Right of way to a church. Question as to whether it was for vehicles.
o Vehicles had used it and they would not be able to turn around.
o Held to apply to pedestrians only.

Question 26

McAdams v Robinson (CA)

Answer 26

o Concerned impliedly created easement. Adjoining sites originally in common ownership. One was originally a bakery and had an easement of drainage under the other land.
o Bakery demolished and two detached houses built in its place. Question as to whether the easement of drainage was available after the redevelopment.
o Held that the easement was lost.
o Intensification of use-If use has intensified then the servient
owner can bring an action in nuisance when it has become
excessive.
o Change in character of dominant tenement-Where there has been a radical change which would result in a substantial increase in burden on servient tenement it will be lost or suspended.
o Where a change will have less than a substantial effect then
the dominant tenement will retain the right to use the
easement.

Question 27

Jelbert v Davis

Answer 27

o Concerned expressly granted easement and whether there was excessive use.
o Right of way at all times for all purposes. Dominant tenement originally a farm but proposed to use part of it as a caravan site for 200 caravans.

o Held that the use was wide but could not be excessive or unreasonably interfere with the rights of others to use the right of way. Held to be excessive but would not say how many caravans would be reasonable.
o Take into account the nature of the land as well as whether other people are entitled to use it.