Easements

Question 1

Easement

Answer 1

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.

Question 2

Legal easements

Answer 2

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.

Question 3

Equitable easements

Answer 3

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.

Question 4

Quasi-easements

Answer 4

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.

Question 5

Public rights

Answer 5

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.

Question 6

Licences

Answer 6

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.

Question 7

Profits a prendre

Answer 7

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.

Question 8

Restrictive covenants

Answer 8

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.

Question 9

Grants and reservations

Answer 9

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.

Question 10

Express creation

Answer 10

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.

Question 11

Implied creation

Answer 11

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.

Question 12

Prescription

Answer 12

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]

Question 13

Is a right an easement or just a licence?

Answer 13

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.
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.

Question 14

The capability rules: re Ellenborough Park

Answer 14

• 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’

Question 15

There must be a dominant and servient tenement

Answer 15

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.

Question 16

The right must accommodate the dominant tenement

Answer 16

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?

It is sometimes difficult to see whether a right benefits land itself, or simply benefits a business run
from that land.
In 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.
However, in 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.
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.
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.

Question 17

There must be no common ownership of the two tenements

Answer 17

The dominant and servient land must be owned by different people. It is not possible for an owner
to claim an easement over their own land: Roe v Siddons (1888) 22 QBD 224. Benefits enjoyed
58 Land Law
over one’s own land are called quasi-easements and are capable of becoming easements if the
land is ever partitioned.
‘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.

Question 18

The right must lie in grant

Answer 18

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.
See examples below.

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.
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
3: Easements 59
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.

Question 19

Disqualifying factors

Answer 19

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.

Question 20

No exclusive possession

Answer 20

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.

Question 21

No additional expenditure

Answer 21

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).
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.

Question 22

No permission

Answer 22

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

Question 23

Express creation

Answer 23

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.
62 Land Law
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).

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.

Question 24

Express legal easements: formalities

Answer 24

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.
3: Easements 63
Figure 3.8: Requirements of a deed
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.

Question 25

Express equitable easements: formalities

Answer 25

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

Question 26

Failed legal easements may be equitable

Answer 26

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.

Question 27

Implied acquisition

Answer 27

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. 66 Land Law 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.

Question 28

Implied acquisition by common intention

Answer 28

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. 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. 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. 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. 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.

Question 29

Implied acquisition under the rule in Wheeldon v Burrows

Answer 29

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. 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. 3: Easements 71 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. 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. 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. 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. 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. 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. 3: Easements 73 * 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. * 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.

Question 30

Implied acquisition under LPA 1925, s 62

Answer 30

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. 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. 3: Easements 75 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. 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. 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. (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.

Question 31

Enforceability by the dominant owner

Answer 31

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. 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).

Question 32

Implied legal easements: enforceability against the servient owner

Answer 32

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.

Question 33

Express equitable easements

Answer 33

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. 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.

Question 34

Implied equitable easements

Answer 34

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.

Question 35

Remedies

Answer 35

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.