Easements

Question 1

What are the conditions for the existence of an easement?

Answer 1

1. Must be dominant and servient tenements which are physically next to each other
2. Separate ownership of the ST and DT (can’t have an easement on your own land)
3. Easement must benefit the DT - cannot be merely personal
4. Right must “lie in grant” - must be sufficiently certain and not too vague
5. Easement must be recognised by the courts and cannot be a negative easement (can’t prevent someone from doing something)
6. No expenditure by the ST owner (cannot compel ST owner to pay anything towards upholding the easement)
7. No exclusive possession - ST must still have a right to land, provided it doesn’t interfere with easement use
8. Use of the easement is not dependant on ST owner’s permission - doesn’t count if DT always has to ask

Question 2

How can an easement be expressly created?

Answer 2

1) By Grant: the owner of the ST deliberately grants an easement to the owner of the DT. To be legal, must be in a deed and registered.

2) By reservation: the owner of the DT, on sale of part, reserves a right so they can use it over the sold land. Must be created in deed and be registered

Question 3

How can an easement be created impliedly?

Answer 3

1) Necessity

2) Common intention of the parties

3) Wheeldon v Burrows

4) Section 62 LPA 1925

Question 4

Implied easement: Necessity

Answer 4

Existence must be essential to the use of the DT (right of way for landlocked land)

Question 5

Implied easement: Common intention of the parties

Answer 5

Land is sold/leased for a particular purpose and that purpose cannot be realised without an easement

Question 6

Implied easement: Wheeldon v Burrows

Answer 6

When A sells/leases part to B, B will acquire A’s quasi-easements over A’s land which are necessary for B’s land

The easement must be:

1) Continuous and apparent: the easement must have been used prior to sale on a continuous basis for length of time and must be noticeable on inspection

2) Necessary for the reasonable enjoyment of the DT (not as strict as for the implied method of necessity)

• Operation of WvB can be expressly excluded in a conveyance
• You cannot reserve an easement via WvB

Question 7

Implied easement: Section 62 LPA 1925

Answer 7

On a conveyance of land, informal rights become easements

Two scenarios:

1) Land is already divided: B is enjoying informal rights in A’s land. B sells their part. C, the new owner, takes B’s informal rights as an easement

2) Land is divided for the first time: B acquires an easement over the retained part, which was a quasi-easement. Use of the right by A must have been continuous and apparent before the sale.

• Conveyance must be in deed
• Does not work for reservations
• Creates an implied legal easement

Question 8

What is prescription?

Answer 8

The acquisition of an easement by long use of that easement

Question 9

What are the requirements to getting an easement by prescription?

Answer 9

Only available to freeholder owners exercised over another freehold owner’s land

Use of easement must have been without:
- force
- secrecy
- permission

Use of easement cannot be for an illegal purpose

Use must be continuous

Right claimed must be one which in nature can be an easement (right of way)

Question 10

What are the two ways an easement can be obtained by prescription?

Answer 10

1) Implied modern grant: the easement has been in continuous use for 20 or more years

2) Prescription Act 1832:
- For rights other than rights of light, you need 20 years of continuous use or, if you have oral permission from the ST, 40 years of continuous use
- For rights of light, 20 years continuous use (even with oral consent)
- For both, oral consent will not defeat the right, but written consent will

Question 11

How can an easement arise via proprietary estoppel?

Answer 11

1) A commitment or promise by one person (x) to another (y) that they can use an easement

2) Which x intends y to rely on (objective test: would a reasonable person believe that x is making a promise she intends to keep and for y to rely on?)

3) In reliance on this promise, y suffers a detriment which is reasonable (doesn’t have to be financial)

4) It would be unconscionable for x to go back on her promise

If PE is granted, the court can create a legal or equitable easement

Question 12

How is an expressly granted or reserved legal easement protected?

Answer 12

For registered land, an expressly granted legal easement (by grant or reservation) is a registrable disposition. It must be registered to operate at law.

For unregistered land, a legal easement is automatically binding (express or implied)

Question 13

What are the requirements of a legal easement?

Answer 13

Must be:
- created out of a freehold or legal leasehold
- granted for the period of the freehold or the lease term
- must be created by grant or reservation, prescription, estoppel or via s62 LPA 1925
- Be contained in a deed
- Be registered if it an expressly granted or reserved legal easement over registered land

Question 14

What happens if the conditions for a legal easement are not met?

Answer 14

It will be an equitable easement

Question 15

How is an implied legal easement protected over registered land?

Answer 15

An implied legal easement will be created by section 62 Law of Property Act 1925 or WvB if the conveyance was in a deed. No registration required.

The easement is binding on third parties provided that:

• the purchaser of the servient land knew of its existence; or
• the existence of the easement would have been obvious on reasonably careful inspection; or
• the easement has been exercised one year prior to the disposition

Question 16

How is an equitable easement protected (registered and unregistered land)?

Answer 16

Registered land: enter a notice in the land registry

Unregistered land: register via a land charge at the Land Charges Registry

Question 17

Is there a right to light?

Answer 17

The right to light is a recognised negative easement but there is no general right to light.

Question 18

How is a right to light defined?

Answer 18

A right to light must be via a defined aperture eg a window. Rights to light do not attach to gardens or open land.

Question 19

What is an easement?

Answer 19

An easement is a proprietary right to use the 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 tenant.

The person who grants the easement land is the grantor and their add, which is burdened by the easement is the servient tenement.

Examples: rights of way, drainage, storage and parking on neighbouring land

Question 20

Are easements legal?

Answer 20

An easement is capable of being a legal interest in land if it fulfils the requirements as to duration.

• Must be equivalent to a freehold or leasehold estate.

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 21

When is an easement equitable?

Answer 21

If an easement is not granted for the equivalent of a freehold or leasehold estate, it can only be equitable.

Eg: a right to part which is granted ‘until the alternative parking facility is completed’ can only be equitable as it is not granted forever or for a set/certain period of time.

Question 22

What is a positive easement?

Answer 22

Most easements are positive meaning they allow the holder to use the servient land of another in a particular way.

E.g. A right of way allows the holder to use a driveway on neighbouring land. A right of drainage allows the the holder to use the pipes under that land. A right to park allows the holder to drive onto and park on part of the neighbouring land.

Question 23

What is a negative easement?

Answer 23

Negative easements are rare and treated with caution by the courts. They do not involve entering the neighbouring land, rather when exercised they prevent the servient land owner from doing something on their land by giving the dominant land owner a right to receive something.

Only recognised negative easements at law are:
- A right to light (no automatic right, must exist in relation to a defined aperture
- A right to air
- A right of support (eg from the dividing wall between semi-detached houses)

Question 24

What is a quasi-easement?

Answer 24

Where landowners use paths on their own land not enjoying easements but the use of the paths could become easements if ever the land was divided - this is called a quasi-easement. A ‘potential easement’.

Question 25

What is the difference between a grant of an easement and a reservation of an easement?

Answer 25

A grant exists where C sells or leases part of their land to D and gives D an easement over the land which C has retained.

A reservation is where C sells or leases part of their land to D and retains a right over the land sold to D.

Grants will be interpreted more widely than reservations which will be strictly construed (as power is in hands of person reserving right).

Question 26

How are easements created?

Answer 26

Either expressly or impliedly.

Express creation: Most easements where grants or reservations are created expressly. They commonly arise when land is sold or leased. They 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.

Implied creation: Easements need not necessarily be expressed. Can be deemed to have been created impliedly by one of several recognised methods. If impliedly created, it is effectively written into the document from which is was originally omitted.

Question 27

When can easement be created by prescription?

Answer 27

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.

Must be used without force, secrecy and without permission.

Only between freehold owners.

Force includes the removal of obstructions, or ignoring the protests of the servient owner, which would include the ignoring of signage.

Question 28

Four tests for easements?

Answer 28

1. Legal or equitable?
2. Capable of being an easement: satisfy ellenborough park tests
3. Disqualifying factors
4. Acquired as an easement: statutory formalities for express grant or reservation; acquired impliedly; acquired by prescription or long use.

Question 29

What are the four essential characteristic of an easement?

Answer 29

• Must be a dominant and servient tenement
• Right must accommodate the dominant tenement: Must benefit the land (although a long-established may count) - is the business a necessary incident to the use of land or is it unconnected?
  Doesn’t have to be connected by should be close enough.
• There must be diversity of ownership - if the same owner it is a quasi-easement.
• Right must ‘lie in grant’
  Person granting must have right to do so, reasonably exact description, judicially recognised (not exhausitive). e.g. right of way, right of drainage or other pipelines, right of support, right to use sporting/leisure facilities, right to use land for recreational purposes.

Question 30

What are the disqualifying factors for easements?

Answer 30

1. Exercise of the right must not amount to exclusive possession of the servient tenement
2. The exercise of the right by the dominant owner must not involve additional, unavoidable expenditure by the servient owner.
3. The exercise of the right must not depend on permission being given by the servient owner.

A right cannot be an easement if the user amounts to:
- exclusive possession by the servient owner
- if is requires payment by the servient land owner or
- if permission is required to exercise the right

Question 31

What are the tests for what amounts to exclusive possession?

Answer 31

Ouster principle: ‘reasonable use’ test: does the servient land owner still have reasonable use of their land?

Possession and control: does the servient land owner still retain possession and control of the land i.e. can they do what they want

Question 32

What are the requirements for an express legal easement?

Answer 32

All expressly granted legal interests must be created by deed.

To be a deed, a document must comply with the formalities:
- Must be clear it is intended to be a deed
- Signed by grantor and witnessed
- Delivered/dated

Where servient land is registered: must be registered at land registry to be legal.

Once this is done the benefit of the easement is noted on the Property Register of the dominant land’s title and burden is noted in the Charges Register of the Servient land’s title.

If not met: easement will be an equitable easement.

Question 33

What are the formalities of an express equitable easement?

Answer 33

• Must be made in writing
• Must be signed by the grantor

Question 34

What happens if an express legal easement is not created correctly?

Answer 34

May be recognised in equity as an estate contract - an enforceable contract to create a legal easement.

Formalities for an estate contract:

• must be made in writing
• must be signed by both parties
• must include all expressly agreed terms.

No substantive registration is needed.

Question 35

What are the four methods of implied acquisition?

Answer 35

1. Necessity
2. Common Intention
3. Wheeldon v Burrows
4. s 62 LPA 1925

Question 36

What is necessity (implied acquisition)?

Answer 36

Necessity is one of the methods of implied acquisition. Only available for a right of way to otherwise landlocked land. Grants and reservations.

An easement of necessity is an easement without which the property cannot be used at all. Not merely for the reasonable enjoyment of the property.
‘Absolute necessity’: the land cannot be used at all without the easement

Available where someone is claiming to have been granted (or theoretically reserved) an easement impliedly based on the doctrine of non-derogation from grant. Easement may be implied into a document for which it was omitted either a transfer or a lease.

I.e. if there is an alternative access route can’t claim easement of necessity.
Not available for drainage, sewerage or electricity.

Sweet v Somer extended this maybe: It recognised a right of way by vehicle as being implied by necessity, even though there was already a right of way on foot and the land was not inaccessible.

Question 37

What is common intention (implied acquisition)?

Answer 37

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. Grants and reservations.

1. The dominant land must be sold or leased for a specific purpose.
2. The purpose must be known to both parties.
3. The easement claimed must be essential to achieve the common purpose.

Heavy burden to show the specific easement was mutually intended.

Question 38

What is the status of an easement implied by common intention?

Answer 38

Takes its status from how it is implied.

Implied legal easements: if implied into transfer deed or legal lease it is an implied legal easement.

Implied equitable easement: if easement is implied into a contract or an equitable lease it is an implied equitable easement.

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.

Question 39

What is the rule in Wheeldon v Burrows?

Answer 39

A method of implied acquisition where someone is claiming to have been granted an easement impliedly.

Not possible to have been impliedly reserved by the rule in Wheeldon v Burrows.

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 division of ownership and occupation of the land and quasi-easements become full easements.

Often will be expressly excluded from transfers, contracts and leases.

Question 40

What are the requirements for Wheeldon v Burrows?

Answer 40

1. Right must have been enjoyed as a quasi-easement by the seller or the landlord before the land was divided.
2. The quasi-easement must have been ‘continuous and apparent’ - some degree of permanence and some evidence on the land that it exists.
3. The quasi-easement must be necessary for the reasonable enjoyment of the dominant land - does the right enhance the land in some way? are there other points of access which are equally convenient?
4. The quasi-easement must be in use by the common owner at the date of the transfer or lease of the dominant land

Question 41

What is the status of an easement implied by rule in Wheeldon v Burrows?

Answer 41

Takes its status from how it is implied.

Implied legal easements: if implied into transfer deed or legal lease it is an implied legal easement.

Implied equitable easement: if easement is implied into a contract or an equitable lease it is an implied equitable easement.

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.

Question 42

What is s62 LPA 1925 (implied acquisition)?

Answer 42

A method of implied acquisition available where someone is claiming to have been granted an easement impliedly.

Will only imply an easement into a conveyance (deed).

Ensures when someone buys freehold land or leases land the buyer or tenant will receive the benefit of all existing easements which affect that land, whether they have been expressly or impliedly granted. An ‘upgrade effect’ to upgrade informal rights into full legal easements.

The section operates in situations where land is sold or let for the first time, and in situations where part of the land has previously been occupied by a tenant but the lease is renewed or that land sold.

Question 43

What are the requirements for s62 LPA 1925?

Answer 43

Only applies where the right being claimed would have been a grant to the claimant.

1. There must have been prior diversity of occupation of the dominant and servient land (not anymore true will also apply to quasi-easements which are continuous and apparent)
2. An informal permission or licence must have been granted to the occupier of the dominant tenement to use the servient land in some way
3. There must have been a conveyance (transfer by deed or legal lease) of the dominant tenement.

Question 44

How is an easement enforced?

Answer 44

To enforce an easement the dominant owner must have the benefit of the easement and thus the ability to sue.

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.

Benefit of an easement will appear in the property register.

Question 45

Implied legal easements: enforceability

Answer 45

Registered land: an implied legal easement will be an overriding interest provided that:
- the easement is within the actual knowledge of the new owner;
- it is obvious on a reasonably careful inspection of the servient land;
- it has been exercised within a year before the transfer of the servient land

Unregistered land: an implied legal easement is enforceable in the same way as an express legal easement and as overriding interest on first registration

Question 45

Express legal easements: enforceability

Answer 45

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.

Unregistered land: A properly created express legal easement will be enforceable. Since LRA 2002, on a transfer of servient land the express legal interest 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.

Question 46

Express equitable easement: enforceability

Answer 46

Registered land: always enforceable against grantor but must be protected by notice in the charges register of servient land to be enforceable against a new servient owner. If not done will not be binding. Someone who is gifted or inherits the land will be bound whether notice is entered or not.

Unregistered: must be protected (by Class D(iii) Land Charge) at Land Charges register to be enforceable against new servient owner. If not done not binding. Volunteer will always be bound.

Question 47

Implied equitable easement: enforceability

Answer 47

Same as for express equitable easements:

Registered land: always enforceable against grantor but must be protected by notice in the charges register of servient land to be enforceable against a new servient owner. If not done will not be binding. Someone who is gifted or inherits the land will be bound whether notice is entered or not.

Unregistered: must be protected (by Class D(iii) Land Charge) at Land Charges register to be enforceable against new servient owner. If not done not binding. Volunteer will always be bound.

Question 48

What are the remedies for easements?

Answer 48

• Prohibitory injunction to prevent interference with the enjoyment of the easement
• Mandatory injunction to remove obstruction
• Damages in lieu of injunction or in addition to it

Question 49

If an equitable easement is not protected by a Notice in the Charges Register of the servient title in accordance with Land Registration Act 2002, s 32, what effect does that have on a new owner of the servient land?

Answer 49

The easement is not binding on a purchaser for value of the servient land