Easements

Question 1

What is an easement, and how does it differ from other property rights?

Answer 1

An easement is a non-possessory right for the owner of one piece of land (the dominant tenement) to make limited use of another piece of land (the servient tenement) for the benefit of their own land.
Unlike ownership or a leasehold, an easement does not confer a right to possess the servient land, only a right to use it in a specific way.

For example, a right of way allows the owner of the dominant land to cross the servient land. The key feature is that the benefit of the easement is tied to the land (dominant tenement) and not just the personal enjoyment of the landowner.

Question 2

What is a profit à prendre, and what rights does it grant? How can it exist “in gross”?

Answer 2

A profit à prendre is a right to enter another person’s land and take something naturally occurring from it, such as fish, timber, or minerals. The term “profit” refers to the benefit gained from extracting or using resources from the servient land. Unlike an easement, a profit can exist “in gross,” meaning it does not have to be attached to a dominant tenement—it can exist independently of land ownership, benefitting an individual rather than a specific piece of land.

Examples include:

• The right to fish from a river running through someone else’s land.
• The right to extract minerals like gravel or chalk.

A profit allows the holder to benefit from the land in a way that involves removing part of it, which is distinct from an easement where the right only allows use without extraction.

Question 3

What legal criteria must be met for an easement to be considered “legal” under Section 1(2)(a) LPA 1925?

Answer 3

For an easement to be classified as legal under Section 1(2)(a) of the Law of Property Act 1925, it must meet two main conditions:

1. Duration: The easement must be granted for either:
   * An estate in fee simple absolute in possession (freehold), which means it exists forever, or

• A term of years absolute (leasehold), meaning it is granted for a fixed and definite duration (e.g., a 99-year lease).

If the easement is granted for an uncertain duration, it cannot be legal and will only exist in equity under Section 1(3) of the LPA 1925.

2. Formality: The easement must generally be created by deed (Section 52(1) LPA 1925), meaning it must meet the requirements for valid deeds set out in Section 1 of the Law of Property (Miscellaneous Provisions) Act 1989. However, there are exceptions where legal easements can arise without a formal deed, such as through long use (prescription) or implication (see Walsh v Lonsdale).

Question 4

What are the formal requirements for the creation of a legal easement, and what is the role of Section 1 LPMPA 1989 in this process?

Answer 4

To create a legal easement, the following formalities are required under Section 52(1) LPA 1925:

• Creation by Deed: A legal easement must be created using a valid deed. Section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 (LPMPA) outlines that a valid deed must be:
• Clearly intended to be a deed.
• Signed by the grantor in the presence of a witness.
• Delivered as a deed.

However, under certain circumstances, legal easements may arise without a deed, such as:

• By prescription, through long-standing and uninterrupted use of the easement for at least 20 years.
• Through implication, where the easement is necessary for the reasonable enjoyment of the dominant tenement (e.g., an easement of necessity).
• Under Walsh v Lonsdale, a contract that meets the requirements of Section 2 LPMPA 1989 can create an equitable easement enforceable in equity, even if a deed is absent

Question 5

According to Re Ellenborough Park [1956], what four essential characteristics must be present for a right to qualify as an easement?

Answer 5

The case of Re Ellenborough Park [1956] outlined four key characteristics that must be met for a right to qualify as an easement:

1. There must be a dominant and a servient tenement: The easement must be attached to two identifiable pieces of land, with the dominant tenement benefitting and the servient tenement being burdened.
2. The easement must accommodate the dominant tenement: The right must benefit the land itself, not just the personal needs of the owner. The right must enhance the ordinary use or enjoyment of the dominant land (e.g., a right of way improving access).
3. The dominant and servient tenements must not be both owned and occupied by the same person: There must be distinct ownership and occupation of the two lands. This ensures the “principle of diversity” is maintained. For example, a landlord and tenant relationship could satisfy this if the landlord retains some land.
4. The easement must be capable of forming the subject matter of a grant: The right must be clearly definable and capable of being granted in law. This means it cannot be too vague (e.g., a general right to fresh air) and must be legal, with a capable grantor and grantee.

Question 6

What is the significance of the dominant and servient tenements in the creation of an easement, and what happens if there is no dominant tenement?

Answer 6

The relationship between the dominant and servient tenements is crucial because an easement must benefit a specific piece of land (dominant tenement) and burden another piece of land (servient tenement). The easement “runs with the land,” meaning it benefits future owners of the dominant land and binds future owners of the servient land.

If there is no dominant tenement, the right cannot be classified as an easement but may instead be a mere license, which is a personal right and does not bind future owners. A notable exception is that a profit (profit à prendre) can exist “in gross,” meaning it can be granted without the need for a dominant tenement and can benefit an individual rather than a piece of land.

Question 7

How does the principle that an easement must “accommodate the dominant tenement” work in practice? What are the limitations illustrated in case law such as Hill v Tupper and Moody v Steggles?

Answer 7

For an easement to accommodate the dominant tenement, the right must be connected to the ordinary use or enjoyment of the dominant land itself. The right should benefit the land and enhance its marketability or utility, not just serve the personal preferences of the landowner.

In Hill v Tupper (1863), a right to operate pleasure boats on a canal was not considered an easement because it benefitted a personal business enterprise rather than enhancing the use of the dominant land. This illustrates the limitation that the right must be tied to the land, not merely to the landowner’s business activities.

In contrast, Moody v Steggles (1879) involved a sign placed on the servient tenement advertising a pub located on the dominant tenement. The court held that the sign benefitted the land, as it supported the business attached to the land, demonstrating how a right can accommodate the dominant tenement if it enhances the land’s use.

Question 8

What does it mean for an easement to be “capable of forming the subject matter of a grant,” and what are the limitations related to vague rights or rights that burden the servient owner?

Answer 8

1. Reasonable Exact Definition: The right must be specific and clearly definable. For example, a right to light can only apply through a defined window, as established in Colls v Home and Colonial Stores [1904]. A vague right like a general flow of air to a timber drying shed, as in Harris v De Pinna (1886), would be too indefinite to be an easement.
2. No Obligation on Servient Owner: An easement cannot require the servient owner to incur expenses, as seen in Rance v Elvin (1985). For example, a servient owner is not required to maintain a right of way, although the dominant owner can repair it.

This principle explains that an easement is a right to use someone else’s land (the “servient tenement”) in a way that doesn’t require the landowner to do anything active, like maintaining or improving the land. The landowner must simply allow the right to be exercised, such as permitting someone to walk or drive over their land.

3. No Joint Possession: An easement must not give the dominant owner exclusive possession of the servient land. The right must not be so extensive as to exclude the servient owner from reasonable use of their land, as illustrated in cases involving parking or storage rights.
4. No New Types of Negative Easements: Courts are highly cautious about recognizing new negative easements. Negative easements restrict the servient owner from doing something on their land, such as preventing building that would block light or airflow. The traditionally recognized negative easements include:

• Right to light (through a specific aperture like a window).
• Right to support (e.g., a building requiring support from a neighboring property).
• Right to air (in limited circumstances where it passes through a specific opening).

Negative easements are rare because they can significantly constrain the servient owner’s ability to enjoy and use their own land. Courts are reluctant to allow the creation of new types of negative easements, as they could prevent the servient owner from engaging in lawful activities or developing their land in the future.

Question 9

What are the different methods by which an easement can be created, and how are these methods generally categorized?

Answer 9

Easements can be created through several methods, categorized as either express or implied:

1. Express grant or reservation: A formal, written deed in which the servient owner grants an easement to the dominant owner, or the seller reserves rights over the land they sell.
2. Implied by necessity: Arises when a landlocked parcel has no access to a public highway, creating an easement as the only means of access.
3. Implied by common intention: Occurs when an easement is necessary for the land to be used for a specific purpose agreed upon by both parties.
4. The rule in Wheeldon v Burrows: Converts quasi-easements into legal easements upon the sale of land, provided certain conditions are met. Only applies to the grant of an easement.
5. Section 62 LPA 1925: Automatically transfers all existing rights and privileges associated with the land during conveyance without the need to expressly include them in the deed.
6. Prescription: An easement acquired through long-standing use over a period of at least 20 years, without formal creation.

These methods ensure that easements can arise either through explicit legal documents or through necessity and longstanding use, protecting the rights of landowners in different situations.

Question 10

What is an express grant and an express reservation of an easement, and how do they differ?

Answer 10

An express grant of an easement occurs when the servient landowner, through a formal written deed, grants a specific right to the dominant landowner to use their land in a particular way, such as granting a right of way. This is a mutual agreement, clearly and deliberately created with all legal formalities observed.

An express reservation happens when a seller, while selling a part of their land, retains certain rights over the land they sell. For instance, the seller could retain a right of way over the sold land. In this case, the retained land becomes the dominant tenement, and the sold land becomes the servient tenement.

The key difference is that a grant creates new rights for the buyer (dominant tenement) over the servient tenement, while a reservation allows the seller to retain specific rights over the land they are selling.

Question 11

What is an easement of necessity, and what limitations apply to its creation?

Answer 11

An easement of necessity is implied when a parcel of land is landlocked, meaning it has no access to a public highway except by crossing over another piece of land. This easement is essential for the use of the land, as without it, the land cannot be used at all.

However, easements of necessity are only implied under extremely limited circumstances:

1.	The easement must be absolutely necessary for the use of the land, not merely convenient or desirable. For example, an alternative route, even if dangerous or difficult, would defeat a claim for an easement of necessity (Union Lighterage v London Graving Dock Co [1902]).

2. The easement can only be used for the purpose for which the dominant land was being used at the time the necessity arose. This was established in London Corporation v Riggs [1880], where the use of the easement was limited to the original use of the dominant land when the easement was created. For example, if your land was used as a farm when the easement was created, you can only use the easement to access it for farming, not for any new purpose.

Thus, easements of necessity are narrow in scope, only allowing access where no other alternative exists and restricting the use of the easement to the original purpose of the land.

Question 12

What does it mean for an easement to be implied by common intention, and what must be proven for this type of easement to arise?

Answer 12

An easement implied by common intention arises when land is conveyed for a particular purpose, and an easement is necessary to allow that purpose to be fulfilled. Both the grantor and the grantee must have had a shared intention or understanding that the land would be used in a specific way that requires the easement.

Key elements to prove:

• There must be a clear, common purpose known to both parties regarding how the land will be used.
• The easement must be essential to achieving that purpose, not just convenient.

For example, in Wong v Beaumont Property Trust Ltd [1965], the tenant was required to operate a restaurant and prevent noxious smells. A ventilation duct was necessary to fulfill these conditions, and the court implied an easement to allow its construction.

This type of easement will only be implied where the use of the land is definite and particular and would not be possible without the easement, as explained by Lord Denning MR. The easement must be directly tied to the common purpose agreed upon by both parties.

Question 13

What is the rule in Wheeldon v Burrows, and how does it convert quasi-easements into legal easements?

Answer 13

The rule in Wheeldon v Burrows applies when a landowner sells part of their land, and it converts quasi-easements (rights the landowner had exercised over their own land) into full legal easements benefiting the buyer, provided certain conditions are met. A quasi-easement is not a true easement because it involves the owner using one part of their land for the benefit of another part, without diversity of ownership.

For the rule to operate, the following conditions must be satisfied:

1. Existence of a quasi-easement before the sale: The right must have been exercised over the retained land before the sale.
2. The right must be continuous and apparent: It should be visibly and habitually used, like a well-trodden path or a visible drain.
3. The right must be necessary for the reasonable enjoyment of the land sold: Although this standard of necessity is less stringent than for an easement of necessity, it must still enhance the enjoyment of the land.
4. The right must be in use at the time of the sale: The quasi-easement must have been exercised when the land was sold.

The rule only applies to grants of easements in favor of the buyer, not reservations by the seller. This means the rule benefits the purchaser of the land, converting existing rights into legally enforceable easements.

Question 14

How does the concept of “continuous and apparent” function under the rule in Wheeldon v Burrows, and what case law illustrates this principle?

Answer 14

The phrase continuous and apparent under the rule in Wheeldon v Burrows refers to the quasi-easement being habitually used and visually noticeable upon inspection of the land. It must be a feature of the land that is not transitory or intermittent and would be evident to someone who inspects the property.

In Ward v Kirkland [1967], the court emphasized that for a right to be “continuous and apparent,” there must be some visible sign of its existence, such as a path, drainage system, or other physical feature that would indicate the right’s use. The test requires a careful inspection by someone familiar with the land, such as a surveyor.

This principle ensures that only rights that are habitually used and clearly visible to anyone inspecting the land are converted into easements under Wheeldon v Burrows.

Question 15

What is the role of Section 62 of the LPA 1925 in creating easements, and how does it differ from the rule in Wheeldon v Burrows?

Answer 15

How does Section 62 of the Law of Property Act (LPA) 1925 create easements, and how does it differ from the rule in Wheeldon v Burrows?

Section 62 of the LPA 1925 automatically converts certain rights, privileges, and benefits related to the land into full legal easements upon the conveyance (transfer) of that land, without needing explicit mention in the conveyance deed. Originally introduced to save time in legal drafting, Section 62 can create easements where none had been formally granted before.

Key aspects of Section 62:

1. Automatic Operation: When land is conveyed, all existing rights (such as paths, access rights, or water usage) are automatically transferred to the buyer unless explicitly excluded in the contract. This includes easements, privileges, and other advantages that the land enjoyed prior to the conveyance.
2. Diversity of Occupation: For Section 62 to apply, there must be diversity of occupation between the dominant and servient tenements at the time of the conveyance. This means different people must occupy the land (e.g., a landlord and tenant scenario). However, this requirement does not apply when the right in question is continuous and apparent, meaning that the right has been habitually and visibly exercised (as in the rule from Wheeldon v Burrows).
3. Creation of New Easements: Section 62 has the ability to convert what were previously licenses (permissions to use land) into full legal easements upon sale. For example, if a tenant had informal permission to use a path across the landlord’s land, Section 62 may elevate that permission into a legal easement for the benefit of the buyer.
4. No Need for Express Words: Unlike the rule in Wheeldon v Burrows, where the quasi-easement needs to be implied and based on use at the time of sale, Section 62 does not require any explicit mention in the deed. It automatically transfers all rights unless explicitly excluded in the conveyance.

Differences from Wheeldon v Burrows:

• Wheeldon v Burrows requires that the quasi-easement be “continuous and apparent” and “necessary for the reasonable enjoyment” of the land at the time of sale. Section 62, however, doesn’t require these conditions to be satisfied.
• Wheeldon v Burrows only applies to grants of easements (i.e., when land is sold), whereas Section 62 applies to both grants and reservations (i.e., when rights are retained over the sold land).
• Section 62 operates automatically, whereas the rule in Wheeldon v Burrows requires an analysis of the situation at the time of the sale to determine whether the quasi-easement converts into a full easement.

Question 16

What are the limitations of Section 62 LPA 1925 in the creation and passing of easements or profits?

Answer 16

While Section 62 LPA 1925 automatically transfers rights associated with the land during conveyance, there are important limitations to its application:

1. No Future Rights: Section 62 can only transfer existing rights at the time of the conveyance. It cannot create new rights that did not exist prior to the conveyance. If the right (e.g., an easement or privilege) is not already in existence when the conveyance occurs, Section 62 cannot be used to create it.
2. Diversity of Occupation Requirement: Section 62 requires diversity of occupation between the dominant and servient tenements at the time the right is created (e.g., between a landlord and tenant or two separate owners). However, this requirement can be waived if the right is continuous and apparent, meaning it is habitually used and visibly noticeable. For example, a well-trodden path or a visible drain would count as continuous and apparent.

• In P&S Platt Ltd v Crouch [2004], the court found that Section 62 could create easements even without diversity of occupation, provided the right was continuous and apparent.
• In Wood v Waddington [2015], the court upheld that Section 62 could operate to create easements even where diversity of occupation was lacking, as long as the right was continuous and apparent.

3. Cannot Cure Defective Easements: Section 62 cannot turn a defective right into a valid easement. The right being transferred must meet the legal requirements of an easement as defined by Re Ellenborough Park (1956).

This means that:
* The right must have a dominant and servient tenement.

• The easement must accommodate the dominant tenement.
• The easement must be capable of forming the subject matter of a grant.
• There must be no joint ownership of the dominant and servient tenements.

4. Exclusion in Conveyance: Section 62 can be excluded if the parties expressly state in the conveyance document that certain rights or easements will not pass with the land. This ensures that parties can prevent unwanted or unintended easements from being transferred.
5. No Application to Contracts for Sale: Section 62 applies only to conveyances, meaning legal documents that transfer ownership (such as deeds or leases). It does not apply to contracts for sale or other informal agreements that do not constitute a formal conveyance.

Question 17

What is prescription in the context of easements, and how does it result in the creation of a legal easement?

Answer 17

Prescription is a legal doctrine by which an easement can be acquired through long-term use of land. If a dominant owner uses a right over a servient tenement for at least 20 years (or 30 years for profits), the court will presume that the right has a lawful origin, and a legal easement will be created. This doctrine operates under the assumption that the right was lawfully granted at some point, even if no formal documentation of the grant exists. The three types of prescription are:

1. Prescription at common law: A presumption that the right existed since 1189.
2. Doctrine of lost modern grant: Assumes a grant was made and later lost.
3. Prescription under the Prescription Act 1832: Establishes rights based on statutory requirements for continuous use.

In all methods, the right must have been exercised:

• Continuously: The use must be regular over the qualifying period.
• As of right: The use must be without force, secrecy, or permission.

Prescription offers a way to establish easements without the need for formal agreements or deeds, provided the long-term use of the right meets the legal criteria.

Question 18

What does “continuous use” mean in the context of prescription, and how is it evaluated?

Answer 18

“Continuous use” under the law of prescription does not mean that the right must be used every day, but it must be regular enough to indicate ongoing, habitual use of the right over the qualifying period (typically 20 years). The use can be intermittent and can be exercised by multiple successive owners of the dominant tenement, provided the use as a whole is consistent.

For example, in Diment v N H Foot [1974], the court held that using the right of access on six to ten occasions over a 35-year period was sufficient to qualify as continuous use. The frequency of the use will depend on the nature of the right. For rights of way, occasional use when required may be enough, while more frequent use may be necessary for other types of easements.

Key aspects of continuous use:

• Multiple freehold owners can successively use the right over the qualifying period.
• The use must be regular and ongoing, though not necessarily daily or constant.
• Temporary interruptions (due to weather, repairs, or other factors) may be allowed, provided they do not exceed one year under the Prescription Act 1832.

Question 19

What does it mean for a right to be exercised “as of right” under prescription law, and what are the three key conditions?

Answer 19

For a right to be exercised “as of right” in prescription law, it must meet three critical conditions:

1.	Without force (nec vi): The use of the right must not involve physical force or overcoming resistance from the servient owner. This includes not removing barriers or ignoring explicit objections from the servient owner, whether the objection is made verbally, in writing, or through signage. Any forced entry or conflict over the right would invalidate the claim of prescriptive use.

2. Without secrecy (nec clam): The use of the right must be open and visible to the servient owner. The servient owner, if diligent in protecting their rights, should be able to discover the use of the right. In Liverpool Corporation v Coghill [1918], pouring borax effluent into sewers at night, even without deliberate concealment, was held to be secretive because it occurred under circumstances that the servient owner could not easily detect.
3. Without permission (nec precario): The use of the right must not be with the explicit or implied permission of the servient owner. Permission can be oral or written. Any payment or agreement indicating permission would prevent the acquisition of a prescriptive easement. However, mere toleration—where the servient owner does not object but also does not grant formal permission—does not prevent the acquisition of an easement. This distinction is critical in understanding how “permission” differs from “toleration” under prescription law.

For the right to be exercised “as of right,” it must satisfy all three conditions throughout the entire prescriptive period of 20 years (or 30 years for profits).

Question 20

What is prescription at common law, and why is it considered difficult to rely on in modern times?

Answer 20

Prescription at common law is based on the principle that if a right has been exercised “as of right” for a long period—typically 20 years or more—it is presumed to have been exercised since 1189, the legal definition of “time immemorial.” The presumption is that the right existed since before 1189, even though no formal grant may exist.

However, the presumption under common law is easily rebutted by the servient owner if they can show:

1. The right was not exercised at some point since 1189.
2. The right could not have been exercised at some point, such as when there was no need for the right or when the physical conditions of the land did not allow for its use.
3. There was unity of seisin (i.e., the dominant and servient tenements were owned by the same person) at any point since 1189, which would invalidate the claim of continuous use.

Because it is relatively easy for the servient owner to rebut the presumption of common law prescription by showing that one of these conditions existed at any point after 1189, it is now considered a difficult and unreliable method for acquiring easements. As a result, common law prescription is rarely relied upon today, and other methods like the doctrine of lost modern grant and the Prescription Act 1832 are more commonly used.

Question 21

What is the doctrine of lost modern grant, and how does it operate as a legal fiction in the creation of easements?

Answer 21

The doctrine of lost modern grant is a legal fiction used to establish an easement where the right has been exercised “as of right” for at least 20 years. Under this doctrine, the law presumes that at some point after 1189, a formal grant of the right was made, but that the grant has since been lost or is otherwise unavailable. The presumption operates even if there is no direct evidence of such a grant.

Key aspects of the doctrine:

• It is a fictional presumption designed to protect long-standing uses that would otherwise be difficult to establish through common law prescription or the Prescription Act 1832.
• The doctrine applies even where the dominant and servient tenements have been in common ownership at some point after 1189, or where there has been a gap in the use of the right (e.g., a period exceeding one year, which would disrupt prescription under the Prescription Act).
• Unlike common law prescription, the presumption of the lost modern grant is harder to rebut, and it is often used as a last resort when other methods of prescription cannot be relied upon.

The doctrine of lost modern grant is widely accepted by the courts as a fallback mechanism to preserve rights that have been enjoyed for a long period but where technical issues prevent reliance on other methods of prescription.

Question 22

How does the Prescription Act 1832 establish easements, and what are the key provisions under this Act?

Answer 22

The Prescription Act 1832 is a statutory framework that simplifies the acquisition of easements and profits through long-term use. Under this Act, a legal prescriptive easement is established if the dominant owner can prove that the right has been used “as of right” for:

• 20 years for easements, or
• 30 years for profits (rights to take resources such as minerals, fish, or timber from the servient land).

Key provisions of the Prescription Act 1832:

1. Section 2: Establishes that if the right has been used continuously for 20 years, a legal easement is created. For profits, the period required is 30 years.
2. Section 4: Requires that the 20-year period be uninterrupted and count backward from the date the legal action is brought. If the right has been exercised continuously for the 20 years leading up to the court action, a prescriptive easement is granted.

• Short interruptions in use do not defeat the claim for prescription, but any interruption lasting one year or more stops time from running, and the dominant owner must restart the 20-year period. In such cases, the doctrine of lost modern grant may provide an alternative means of acquiring the easement.

Example: If a right of way has been used for 19 years and an interruption of more than one year occurs, the 20-year period must start again. However, if the interruption is less than one year, the claim can still proceed.

The Prescription Act 1832 is widely used in modern times because it provides a clear and structured process for acquiring easements through long-standing use, and it is generally easier to rely

Question 23

When a servient tenement is sold, will the new owner be bound by an easement, and what factors determine this?

Answer 23

Whether a new owner of the servient tenement is bound by an easement depends on how and when the easement was created. Legal easements generally bind subsequent owners, but equitable easements require specific protection measures, such as registration, to bind future buyers.

Question 24

In unregistered land, under what conditions is a legal easement binding on the buyer of the servient tenement?

Answer 24

In unregistered land, a legal easement (created by express grant, necessity, common intention, the rule in Wheeldon v Burrows, s 62 LPA 1925, or by prescription) is binding against the whole world. This means any buyer of the servient tenement will be bound by it without needing further registration or notice.

Question 25

How is an equitable easement created after 1926 protected in unregistered land, and what is the consequence if it is not protected?

Answer 25

An equitable easement created post-1926 must be protected by registering it as a D(iii) Land Charge under s 2 of the LCA 1972. This registration serves as actual notice, making the easement binding on the buyer. If the easement is not registered as a Land Charge, it is void against a buyer for value unless registered before purchase completion.

Question 26

How are easements and profits that existed before 12 October 2003 treated in registered land, and what case supports this treatment?

Answer 26

Easements and profits that existed before 12 October 2003 are treated as overriding interests in registered land under s 70(1)(a) LRA 1925. This status is confirmed by Thatcher v Douglas (1996), which interpreted equitable easements as retaining overriding status, as reaffirmed under Sch 12 of the LRA 2002.

Question 27

What is required for an express legal easement or profit created after 12 October 2003 in registered land to be binding?

Answer 27

An express legal easement or profit created after 12 October 2003 must be completed by registration under s 27(2)(d) LRA 2002 to be binding. Once registered, notices are automatically entered on the charges register of the burdened land. If not registered, the easement only has equitable status, not full legal protection.

Question 28

How are legal easements or profits created by implication or prescription after 12 October 2003 treated in terms of enforceability in registered land?

Answer 28

Legal easements or profits created by implication or prescription after 12 October 2003 are binding as overriding interests in registered land if one of the conditions in Sch 3, para 3 LRA 2002 is met. These conditions include the purchaser’s actual knowledge, visibility upon inspection, or evidence of use in the year before the disposition.

Question 29

How can an equitable easement or profit created after 12 October 2003 be protected in registered land, and what happens if it is not protected?

Answer 29

An equitable easement or profit created after 12 October 2003 is protected by entering a notice on the charges register of the servient land under ss 29 and 32 LRA 2002. If no notice is entered, the easement is not binding on a subsequent purchaser, as it is considered a minor interest and cannot be upgraded to overriding status (as held in Chaudhary v Yavuz [2011]).