Easements

Question 1

What is a Lease? (AKA term of years)

Answer 1

Involves a time-limited right to exclusive possession of land

Question 2

What is a License?

Answer 2

A personal permission to enter another’s land

Question 3

What is a Deed?

Answer 3

Deeds are legal documents concerning the ownership or tenure of property.

Question 4

What is an Easement?

Answer 4

An Easement is the right to make limited use of another’s land.

Question 5

What is Profit à prendre?

Answer 5

Profit à prendre is right to take something from another’s land.

Question 6

How is an Easement created?

Answer 6

In the case of Re Ellenborough Park [1956] Ch 131, Sir Raymond Evershed MR set out the following criteria for a valid easement
- There must be a dominant and a servient tenement; and
- The easement must “accommodate” the dominant land (Hill v Tupper (1863) 2 H & C 121; Moody v Steggles (1879) 12 ChD 261; Polo Woods v Shelton Agar [2010] 1 All ER 539; and
- The dominant and servient owners must be different persons; and
- The right must be capable of forming the subject-matter of a grant.

Question 7

What is a Dominant tenement and Servient tenement?

Answer 7

A right benefiting a piece of land (known as the dominant tenement) that is enjoyed over land owned by someone else (the servient tenement)

Question 8

Rights recognised by Easements:

Answer 8

• Right to use domestic facilities (toilet)
• Right to use recreational facilities (golf course)
• Right to lay and maintain drains, pipes and cables on or under servient land (Jones v Pritchard [1908] 1 Ch 630).

Question 9

Positive Easements

Answer 9

An easement is positive if the dominant landowner has a right to do something on the servient land. For example, if A has a right of way over B’s land, A is entitled to pass and re-pass across B’s land by means of a defined route.

Question 10

Negative Easements

Answer 10

An easement is negative if the dominant landowner has a right to prevent the servient landowner doing something on the servient land. For example, if A has a right to light over B’s land, the substance of the right is to stop B developing his land in such a way as to interfere with A’s light.

Question 11

Positive Easements

Answer 11

While the courts are willing to accept new types of positive easements, they are not willing to recognise new types of negative easements. This is clear from the decision in Phipps v. Pears [1965] 1 QB 76, where the Court of Appeal rejected a claim to an easement of protection from the weather. The easement, if accepted, would have prevented the defendant from pulling down his own building.

Question 12

Negative Easements

Answer 12

Negative easements usually have an adverse effect on the development of land.

Question 13

Methods of acquiring easements and profits

Answer 13

• Express grant or reservation
• Implied grant and reservation
• Prescription

Question 14

What is an Expressed grant?

Answer 14

Suppose Abi owns Greenacre and Bob owns Redacre. If Abi agrees to create an easement over Grenacre in favour of Bob, then she can do so by expressly granting the easement to him by deed.

Question 15

What is and Expressed reservation?

Answer 15

Suppose Abi owns both Greenacre and Redacre, but decides to transfer Redacre to Bob. As part of the transaction, Abi wishes to retain an easement over Redacre for the benefit of Greenacre. She can achieve this by expressly reserving the easement by deed at the time of the transfer.

Question 16

2a) Absolute Necessity

Answer 16

Where the land transferred is completely unusable (i.e. landlocked) without an implied easement over land retained by the transferor at the time of the transfer (Nickerson v Barraclough [1980] Ch 325).

Question 17

2b) Common Intention

Answer 17

Where the land transferred cannot be used in the manner intended by the parties without an implied easement over land retained by the transferor at the time of the transfer (Wong v Beaumont Property Trust Ltd [1964] 2 All ER 119).

Question 18

Wheeldon v Burrows (1879) 12 ChD 31:

Answer 18

This rule relates specifically to acts of user exercised by a landowner over his or her own land prior to subdivision, which would have amounted to easements if the land had already been subdivided (known as “quasi-easements”).

Question 19

Quasi-Easement

Answer 19

A right not formally granted but exercised over one part of a piece of land for the benefit of another part

Question 20

Law of Property Act 1925, section 62(1):

Answer 20

This method of implied acquisition hinges on the statutory provision contained in s.62(1) which reads as follows:
“A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.”

Question 21

Wright v Macadam [1949] 2 All ER 565:

Answer 21

Mrs Wright was the tenant of two rooms of a flat on the top floor of a house. The landlord gave her permission to use a shed in the garden for storing her coal. Soon afterwards, the landlord granted Mrs Wright a new tenancy of the top floor flat (including an extra room). The landlord later suggested that Mrs Wright should pay for the use of the shed, but she refused to do so. The landlord then denied her right to use the shed. Mrs Wright claimed that she was entitled to do so under the Law of Property Act, 1925, s.62(1). The Court of Appeal held that the new lease constituted a “conveyance of land” within the meaning of s.62(1) of the LPA 1925. A right which is, in fact, enjoyed with property, even though enjoyed only by permission, passes on a conveyance of the property by virtue of the grant to be read into the conveyance under s.62(1), provided: (a) that the right is one capable of being granted at law; and (b) that it is not merely a temporary right. In this case the right to use the coal shed to store such coal as might be required for the domestic purposes of the flat was a right which the law would recognise as an easement and it was not temporary in nature. Therefore, when the new lease was created in favour of Mrs Wright, she acquired an easement of storage in relation to the coal shed.

Question 22

Prescription:

Answer 22

Prescription operates by positively legitimating rights that have been exercised over long periods of time (compare adverse possession which operates negatively by extinguishing the right to recover possession of land)

Question 23

3a) Prescription at common law:

Answer 23

Presumption that user for more than 20 years began before “time immemorial” (1189), but this is easily rebutted by proof that user must have begun since 1189.

Question 24

3b) Doctrine of lost modern grant:

Answer 24

Doctrine that user for more than 20 years is evidence that the user was once the subject of a formal grant which has since been misplaced or lost (Dalton v. Angus & Co (1881) 6 App Cas 740; Tehidy Minerals v. Norman [1971] 2 All ER 475).

Question 25

3c) Prescription Act 1832:

Answer 25

Prescription Act 1832: described as “… one of the worst drafted Acts on the Statute Book …” in the 14th Report of the Law Reform Committee, 1966, Cmnd 3100, para.40.

Question 26

Prescription Act 1832:

Answer 26

• Uninterrupted user as of right for more than 20 years cannot be defeated by evidence that such user began after 1189 (s.2). (but may be defeated on other grounds – e.g. permission)
• Uninterrupted user as of right for more than 40 years is “absolute and indefeasible”, unless enjoyed by written consent or agreement (s.2).
• Corresponding periods for profits à prendre are 30 and 60 years respectively (s.1).
• Uninterrupted access to light for more than 20 years makes the access “absolute and indefeasible”, unless enjoyed by written consent or agreement (s.3).
• In all cases the time periods are strict; the user must be continuous (discounting any interruption of less than one year); and the relevant time period must occur “next before … action” (s.4).

Question 27

Easements and Profits:

Answer 27

• Easements and profits expressly granted or reserved by deed are LEGAL.
• Easements and profits arising from implied grant and prescription are also LEGAL (despite lack of formality).

Question 28

Easements and Profits:

Answer 28

• A specifically enforceable agreement for an easement or profit (express or implied) creates an EQUITABLE easement or profit:

Question 29

Miscellaneous Provisions Act 1989 (rule in Walsh v Lonsdale);

Answer 29

The claimant argued that under common law rules a lease had to be created by deed to be legal. This had not been done, therefore the lease was not legal.
The Court of Appeal found in favour of the defendant landlord. The Judicature Acts 1873-1875 had fused the two separate legal systems of common law and equity into one system. In any conflict, the rules of equity should prevail. According to the equitable maxim ‘Equity looks on as done that which ought to be done’ the parties were treated as having a lease enforceable in equity from the date of the agreement to grant the lease. Such a lease was held under the same terms and the court could order specific performance of it. Lord Jessel stated [at 14-15]:
‘The tenant holds… under the same terms in equity as though the lease had been granted… He cannot complain of the exercise by the landlord of the same rights as the landlord would have had if a lease had been granted.’
Consequently the landlord was allowed to distrain the tenant’s goods in satisfaction of the debt.

Question 30

Proprietary estoppel (E.R. Ives Investments v High [1967] QB 379).

Answer 30

Mr High owned 77 Earlham road on which he was building a house. Mr Westgate purchased the adjoining property to build a block of flats. Mr High noticed that the foundations of the flats trespassed onto his land by 12 inches and met with Mr Westgate to discuss the matter.
It was agreed that Mr High would allow the trespass in return for Mr Westgate granting him a right of way across his land. Consequently Mr High built his house in such a way that the only access by car was via Mr Westgate’s yard. Mr Westgate sold the flats to Mr and Mrs Wright soon after they were built. The conveyance made no mention of the right of way and it was not registered as a land charge.
However, they allowed Mr High to use the right of way for 14 years without dispute and Mr High erected a garage on his property in reliance that the right of way was valid. The Wrights then sold the flats at auction. The auction stated that the flats were subject to a right of way and the conveyance also mentioned the right of way.
Ives Investment purchased the flats and then sought to bring an injunction to prevent Mr High using the right of way on the grounds that it was void under s.4(6) Land Charges Act 1972 as it was not registered as a land charge.

Question 31

E.R. Ives Investments v High [1967] QB 379), outomce:

Answer 31

The injunction was refused on two grounds:

1. Mutual benefit and burden - Ives investment could not take advantage of the benefit of the foundations which trespassed on Mr. High’s land without being subject to the burden of the right of way following Hopgood v Brown [1955] 1 WLR 213.

Question 32

E.R. Ives Investments v High [1967] QB 379), outcome:

Answer 32

2. Estoppel - An equity arising from the expense incurred in building the garage, with the Wrights’ acquiescence in standing by knowing he believed he had a right of way. This equity was binding on Ives Investment as successor in title since they had express actual notice of the right of way and it would be inequitable for them to deny its existence. Inwards v Baker [1965] 2 QB 29 applied.

Question 33

Registered Land:

Answer 33

• Legal easements and profits created by express grant or reservation
• Easement or profit created expressly takes effect in equity until it is completed by registration (LRA 2002, s.27(2)(d)) (i.e. registrable disposition).
• Benefit is entered in the Property Register of the dominant title.
• Burden must be entered in the land Register of the servient title (failure to enter the appropriate notice means that the easement or profit takes effect only in equity).

Question 34

Legal easements and profits created by implied grant or prescription:

Answer 34

Details will not normally appear on the Land Register, but may be entered if established to the satisfaction of the Land Registrar. Easements and profits acquired by implied grant or prescription are examples of rights acquired in circumstances where “… it is unreasonable to expect the person who has the benefit of the right to register it as a means of securing its protection”. (Law Commission and H M Land Registry, Land Registration for the 21st Century: A Consultative Document, Law Com No.254, 1998) para.4.4).

Question 35

Equitable easements and profits:

Answer 35

• Under LRA 1925, s.70(1)(a), equitable easements and profits that were “openly enjoyed and exercised” qualified as overriding interests.
• Equitable easements and profits created BEFORE 13th October 2003, which qualified as overriding interests under the old law, continue to do so under LRA 2002.
• BUT equitable easements and profits created AFTER 13th October 2003 must be protected by entry of a notice on the Land Register (“charges” section) for the servient land.
• An equitable easement or profit created after 13th October 2003 cannot qualify as an overriding interest (LRA 2002, Sch.3, para.3 applies only to “legal” easement and profits).
• Use of an easement does not amount to “actual occupation” of land (Chaudhary v Yavuz [2013] Ch 249), so an equitable easement cannot qualify as an overriding interest under LRA 2002, Sch.3, para.2.

Question 36

Unregistered Land

Answer 36

• Legal easements and profits: benefit and burden pass automatically and bind a purchaser (“legal rights bind the world”).

Question 37

Unregistered Land

Answer 37

• Equitable easements and profits: burden must generally be registered under Land Charges Act 1972 as Class D(iii) land charge, against the name of the owner of the servient land (otherwise it will be void against a purchaser for money or money’s worth of a legal estate in the servient land).
  BUT note the exception in E.R. Ives Investments v High [1967] QB 379 (equitable easement by proprietary estoppel protected despite lack of registration).

Question 38

Easements created by express grant or reservation:

Answer 38

• Scope is determined by interpreting the words of the express grant or reservation.
• Easement or profit may not be used for a purpose wholly different from that envisaged by the original grantor and grantee.

Question 39

Easements and profits created by implied grant or prescription:

Answer 39

• Scope is determined by examining the use of the easement or profit and the physical character of the land at the time of acquisition.
• “The right acquired must be measured by the extent of the enjoyment which is proved” (per Bovill CJ in Williams v. James (1867) LR 2 CP 577 at 580).
• A dominant owner is not permitted to make “excessive use” of an easement or profit. Excessive use may also lead to the easement or profit being extinguished. Excessive use will occur if there is:
   Radical change in the character or change in the identity of the dominant land; AND
   Substantial increase or alteration in the burden on the servient land (McAdams Homes Ltd v. Robinson [2004] EWCA Civ 214)

Question 40

Remedies for substantial interference with an easement or profit include:

Answer 40

• Abatement
• Decleration
• Prohibitory injunction
• Mandatory injunction
• Damages

Question 41

Abatement: rights of lights (prescription act 1832)

Answer 41

• The plaintiff had established at trial that the garage built by the defendants’ predecessors in title encroached onto her property by about 4.5 inches, but the judge had declined to grant her a mandatory injunction requiring removal of the encroaching part of the garage. The plaintiff appealed the refusal of the injunction and lost in the Court of Appeal. Her petition to the House of Lords was refused. She was unwilling to accept that this was the end of the matter and embarked on a campaign of trespass, including building a wall in front of the defendants’ garage! As a result of her conduct the defendants sought and obtained an injunction restraining her from trespassing on their land. She breached this and was ultimately committed to prison for 2 years.

Question 42

Declaration:

Question 43

Prohibitory injunction: Right of way

Answer 43

• A piece of land had the benefit of a right of way granted at all times and for purposes (the land with the benefit of the covenant originally being used for agricultural purposes). This right was deemed to be inadequate to enable the land to be used as a caravan site.
• Note that the terms of a prohibitory injunction may place very detailed restrictions on the exercise of an easement or profit

Question 44

Mandatory injunction:

Answer 44

• An order of the court requiring a party to do something or to stop doing something (a prohibitory injunction). If a person fails to comply with an injunction order this may constitute a contempt of court.

Question 45

Damages:

Answer 45

Courts were given jurisdiction to grant damages in place of an injunction under Lord Cairns’ Act 1858 (now Supreme Court Act 1981, s.50). The case of Shelfer v City of London Electric Light Co [1895] 1 Ch 287 that damages may be awarded instead of an injunction if:
- injury to the claimant’s rights is small; and
- injury is capable of being estimated in money; and
- injury can be compensated by a small money payment; and
- it would be oppressive to grant an injunction.

Question 46

Reform?

Answer 46

There is a lot of proposal for reform around Easement’s. Law commission have done a lot of work about how the Law should be reformed.

Question 47

Prescription:

Answer 47

Are they fair?