Easements

Question 1

what is servient tenement?

Answer 1

The land over which the easement is exercised (the burdened land)

Question 2

what is dominant tenement?

Answer 2

The land that enjoys the right (the benefitted land)

Question 3

who is the servient owner?

Answer 3

The owner of the servient tenement

Question 4

who is the dominant owner?

Answer 4

The owner of the dominant tenement

Question 5

what is an easement?

Answer 5

An easement is a right enjoyed by the dominant owner over the servient tenement

In other words, an easement is an interest in land owned by a party who is not the legal estate owner. They do not own the freehold or leasehold estate but have a right over it.

Question 6

how are easements given? Explain this and give an example.

Give an example.

Answer 6

An easement can either be granted or reserved, depending on the nature of the easement.

An easement is granted where the easement is for the benefit of the buyer. In other words, someone else is given rights over the land.

An easement is reserved for the benefit of the seller. This is relevant where the owner sells part of the land to someone else, but retain some rights over the sold land (i.e. they are reserving rights of the land they are selling)

The easiest way to understand this is using an example.

Tom owns a farm which includes a barn. Tom sells the barn to Sam.
Sam will need a right of way to get to the barn, and Tom will need to reserve the rights to the drains which go underneath the barn.

example:
* The right of way is a grant of an easement.
* The right to use the drains is a reservation of an easement.

Question 7

can an easement / profit be legal?

Answer 7

Yes, but only if it is granted for a fixed time or forever and in some instances, if formalities have been met.

Easements/profits for an uncertain amount of time can only exist in equity

Question 7

what is a profit a prednre?

Answer 7

right to go onto somebody else’s lands and remove something that exists naturally i.e. coal, catch fish

Question 7

when will an easement/profit exist in equity?

Answer 7

an easement/profit for an uncertain about of time can only ever exist in equity

Question 8

what are the types of easement?

Answer 8

there is not an exhaustive list of easements. Courts are prepared to recognise new easements. However, for the right to exist as an easement, it must have four characteristics:
o There must be a dominant and servient tenement
o The easement must accommodate the dominant tenement
o The dominant and servient tenements must not both be owned and occupied by the same person
o The easement must be capable of forming the subject matter of the grant

Question 9

re: identifying an easement

explain ‘there must be a dominant and servient tenement’

Answer 9

An easement cannot exist in gross (i.e. on servient tenement only). If so, this will only create a licence.

NB: this does not apply to profits. Profits can exist in gross.

Question 10

re: identifying an easement

explain ‘the easement must accommodate the dominant tenement’

Answer 10

The right must be connected with the normal enjoyment of the dominant tenement. This is a question of fact.

The tenements need not be joined, but must be close enough to establish a connection.

The right must benefit the land and not just the owner in a personal capacity

Question 11

re: identifying an easement

what relationship satisfies the principle of diversity and why?

Answer 11

The landlord / tenant relationship.

The landlord owns the freehold. They will grant a lease over part of their land. The tenant will occupy the leased land. Therefore, different people are occupying the land. The landlord could then grant an easement in favour of the tenant over the land not subject to the lease (i.e. the landlord’s retained land)

Question 11

re: identifying an easement

what are the key questions to ask when establishing if the right benefits the land (and not the owner)?

Give examples

Answer 11

o Does the right improve the marketability of the land? and/or
o Would any owner of the land see it as a benefit?

o Easement > right to use a communal garden
o Easement > sign providing directions to a pub
o Not an easement > right to put pleasure boats on a canal as this was an independent business enterprise

Question 11

re: identifying an easement

explain ‘the dominant and servient tenements must not both be owned and occupied by the same person’

Answer 11

The principle of diversity i.e. that you cannot have an easement over your own land, the tenement owners must be different

Question 12

re: identifying an easement

what is a quasi-easement?

Answer 12

rights exercised by the sole owner of two separate properties. These have all of the characteristics of an easement but they do not satisfy the principle of diversity (because they are owned and occupied by the same person).

Question 13

re: identifying an easement

explain ‘easement must be capable of forming the subject matter of the grant’

Answer 13

A legal easement must be capable of being granted by deed and therefore capable of precise definition.

There must be a capable grantor and grantee (i.e. they have the power to do this).

Question 13

re: identifying an easement

how does a quasi-easement become an easement?

Answer 13

Quasi-easements can be converted to easements on a sale of part of the land

Question 14

re: identifying an easement

what are the four key points in relation to ‘easement must be capable of forming the subject matter of the grant’

Answer 14

An easement must:
o be capable of reasonably exact definition
o not involve any expenditure by the servient owner
o not be so extensive as to amount to a claim to joint possession of the servient tenement

The law is cautious when it comes to a claim for a new type of negative

Question 15

re: identifying an easement

give examples of easements that were not ‘capable of reasonably exact definition’

Answer 15

• ‘general flow of air to a timber drying shed’ - not an easement, too vague
• ‘general right to light’ - not an easement, but it may be possible if there was a defined departure i.e. a window and it must infringe on comfortable enjoyment of land
• ‘right to view’ - not an easement

Question 15

re: identifying an easement

give examples of easements that were ‘capable of reasonably exact definition’

Answer 15

• ‘right to use land for recreational purposes’ i.e. communal gardens, swimming pools, tennis courts  can be an easement

Question 16

re: identifying an easement

explain ‘the easement must not involve any expenditure by the servient owner’

Answer 16

The owner of the servient tenement must only suffer and not have any positive obligations

Exception > the right to require the owner of the adjoining fence to keep the bound art fence in repair. This appears to be limited to settings where it is important to maintain stock proof fences

Question 17

re: identifying an easement

explain ‘the easement must not be so extensive as to amount to a claim to joint possession of the servient tenement’

Answer 17

the easement must not be so extensive as to exclude the grantor complete from possession of the servient tenement

The greater the intensity of the use claimed the less likely the court is likely to recognise it as an easement. Key Q - does it leave the owner with reasonable use of their land?

Judged temporally and spatially.

Question 18

re: identifying an easement

give examples in relation to ‘the easement must not be so extensive as to amount to a claim to joint possession of the servient tenement’

Answer 18

o Right of tenant to store domestic coal > easement

o Right to store articles in a cellar beneath the neighbouring owner’s living room > not an easement as extensive use of confined space

o Right to store and repair vehicles on the land > not an easement, as there was no limit on the number of vehicles or the length of time they could be on the land

o Right to park 6 cars between 8am – 6pm which would cover the whole of the servient land > no easement, no reasonable use of land

Question 19

what are the types of easement?

Answer 19

positive and negative easements

Question 20

what is a positive easement?

Answer 20

a right which gives the dominant owner the right to enter or use the servient land in some way (eg a right of way)

simply put - the right to do something in, under or over the land

most easements are positive.

Question 21

what is a negative easement?

Answer 21

a right that restricts the servient owner from doing something that would interfere with the dominant owner’s ability to benefit from a particular feature or condition

simply put - the right to stop the owner from doing something i.e. blocking light which enters through a window

Question 22

explain the position in relation to a ‘right to light’

Answer 22

there is no general or automatic right to light, but it may exist in relation to a defined aperture.

Once such a right has been established, it must be proven that the right has been infringed and the amount of light has been reduced to below a level which ‘is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind’.

ordinary purposes will depend on how the property is being used

Question 22

what are the recognised negative easements?

Answer 22

the only recognised negative easements are light, air and support (a right to television reception was not an easement).

There is no general ‘right to light’ in English law, but a right to light can exist in relation to a defined aperture (i.e. a window)

Question 23

if someone claims to have an easement, but it fails the test, what is the consequence of this?

Answer 23

There will be no easement, it will be a licence only.

Even if the right is granted by deed, if it does not satisfy the 4 elements, it will be a licence.

Question 24

explain how the recognised negative easements operate in practice

Answer 24

Light: The servient owner cannot build a structure that blocks sunlight reaching the dominant land (e.g., a garden, window, or solar panel).

Support: The servient owner cannot remove soil or structures that would cause the dominant land (or buildings on it) to collapse.

Air: The servient owner cannot build a structure that obstructs the flow of air to the dominant property.

Question 25

give an explaining the ‘right to light’

Answer 25

Property A (Dominant Land): Owned by Alice. She has large windows that face east, enjoying natural sunlight throughout the day.

Property B (Servient Land): Owned by Bob. Bob wants to build a tall garage near his boundary that would block sunlight from reaching Alice’s windows.

If Alice has a right to light as a negative easement over Bob’s land, Bob cannot build the garage if it would significantly reduce the natural light reaching Alice’s windows. This is because the easement restricts Bob’s ability to take actions (e.g., building tall structures) that interfere with Alice’s benefit (receiving sunlight).

Question 26

how can a legal easement be created?

Answer 26

o Express
o Implied
o Prescription

Question 27

re: creating a legal easement

explain the Walsh v Lonsdale principle

Answer 27

This principle provides that where there is a contract which complies with s2 LPMPA; the claimant has clean hands; and specific performance is an available remedy, equity can step in.

A legal easement should be created by deed. However, if this has not been done but there is a contract for an easement and the above is satisfied, the courts will be prepared to recognise the easement as equitable.

Question 28

re: creating a legal easement

explain ‘express grant/reservation’

Answer 28

this is where the easement has been expressly agreed between parties.

An express grant/reservation of a legal easement must be created by deed which complies with s1 LPMPA 1989

If there has not been a deed / it has not been properly executed, but there is contract which complies with the Walsh v Lonsdale principles

Question 28

re: creating a legal easement

what must happen once an express grant is given?

Answer 28

The express grant/reservation of an easement over registered servient land must be completed by registration because it is a registrable disposition. It will not operate at law until the registration requirements have been met.

If the servient land is unregistered, the grant/reservation of an easement is not a registrable disposition, so it is effective at law when it is made

Question 29

re: creating a legal easement

when will a legal easement be implied?

Answer 29

an easement can be impliedly granted / reserved where there has been a sale of a part of a larger piece of land on one of the following basis:
* Necessity
* Common intention
* Wheeldon Burrows
* S62 LPA 1925

Question 30

re: creating a legal easement

what types of easements can be implied by necessity?

Answer 30

grants and reservations

Question 31

re: creating a legal easement

when can an easement be implied by necessity?

Answer 31

a legal easement will be implied by necessity where there has been a sale of a land-locked parcel of land that has no means of access from a public highway (i.e. the only access to the land is via the right claimed)

An easement of necessity can only be used for purposes for which the dominant land was being used at the time the necessity arose

Question 32

re: creating a legal easement

how would a claim for a legal easement implied by necessity be defeated?

Answer 32

Such a claim would be defeated if there was another means of access, even if it was dangerous

Question 33

re: creating a legal easement

what types of easements can be implied by common intention?

Answer 33

grants and reservations

Question 34

re: creating a legal easement

when can an easement be implied by common intention?

Answer 34

Where land is conveyed for a purpose known to the grantor, any easement over retained land by the grantor which is essential for that purpose to be carried out is implied in favour of the grantee

this requires evidence of common purpose between parties when the disposition of land was completed.

Question 35

re: creating a legal easement

give an example of an easement implied by common intention

Answer 35

lease required the restaurant to ensure no noxious smells were emitted. The only way to comply was to build a ventilation duct in the remaining part of the building owned by D. An easement was implied as it was the only way the lease could be complied with

Common purpose = the lease required no noxious gases to be emitted
easement = right to ventilation duct on D’s retained land

Question 36

re: creating a legal easement

what types of easements can be implied by the Wheeldon v Burrows rule?

Answer 36

grants in favour of the buyer only and it is not thought to include profits

Question 37

re: creating a legal easement

what is the Wheeldon v Burrows rule?

Answer 37

This converts a quasi-easement (QE) into a full legal easement on sale of land if the following conditions are met:
o The QE existed prior to sale;
o The right is continuous and apparent;
o The right must be necessary to the reasonable enjoyment of the land sold; and
o The right must be in use at the time of the sale

Question 38

re: creating a legal easement

what are the Wheeldon v Burrows conditions?

Answer 38

o The QE existed prior to sale;
o The right is continuous and apparent;
o The right must be necessary to the reasonable enjoyment of the land sold (this is less stringent that necessity ground); and
o The right must be in use at the time of the sale

Question 39

re: creating a legal easement

Give an example of ‘the right must be necessary to the reasonable enjoyment of the land sold’ re: Wheeldon v Burrows

Answer 39

a right of way was claimed as necessary for the reasonable enjoyment of the land in order to avoid a dangerous route

Question 40

re: creating a legal easement

when considering Wheeldon v Burrows in an SBAQ, what should you look for in the fact pattern?

Answer 40

the land was in common ownership and the owner exercised QEs over the land, the land owner then sold part of the land

There is no requirement for a conveyance, a contract recognised in equity would suffice.

Question 41

re: creating a legal easement

what types of easements can be implied by s62 LPA 1925?

Answer 41

Grants only

Question 42

re: creating a legal easement

what is the effect of s62 LPA 1925?

Answer 42

This has the effect that on a conveyance of land (subject to anything contrary in the deed), the conveyance is deemed to pass to the buyer all buildings, fixtures, privileges, rights, easements and advantages attached to any part of the land at the time of the conveyance

Question 43

re: creating a legal easement

what are the conditions for s62 LPA 1925?

Answer 43

1. There must be a conveyance as defined in s205(1)(ii) LPA 1925
    i.e. an instrument (i.e. written document with the effect of creating or transferring the legal estate, like a mortgage or lease) but contracts for sale are excluded
2. There must be diversity of occupation of the two parts of land at the time of the grant. However this does not apply to:
    Easements of light; or
    Where rights were continuous and apparent
   (i.e., there need not be diversity of occupation where the easement is of light or where the rights were continuous and apparent)
3. There must be an existing privilege at the date of the conveyance (not concerned with future rights)
4. The right must be capable of being an easement or profit (i.e. meets the four characteristics)

Question 44

re: creating legal easements

when considering s62 in an SBAQ, what should you look for in the fact pattern?

Answer 44

an existing licence / permission and subsequent conveyance. There must be diversity of occupation (but not if the right is related to light or is continuous and apparent)

Question 45

what is the crux of prescription?

Answer 45

If the dominant owner can show use of right for 20 years, the court will uphold the right assuming that it had a lawful origin, a legal easement will be created

Question 46

what are the types of prescription?

Answer 46

o Common law
o Doctrine of lost modern grant
o Prescription Act 1832

Question 47

regardless of the type of prescription, what must be proven to rely on prescription?

Answer 47

Whatever method relied on, they will need to show that the right has been exercised by or on behalf of a freehold owner against a freehold owner continuously and as of right.

Question 48

re: prescription

explain the ‘continuously’ element

Given an example

Answer 48

use can be by a number of freehold owners in succession and may be intermittent in nature

Case law example - use for 6 to 10 occasions over a 35-year period qualified as continuous

Question 49

re: prescription

explain the ‘as of right’ element

Answer 49

The right must be exercised without force, secrecy or permission

Question 50

re: prescription

explain the ‘as of right, without force’ element

Answer 50

Without force (nec vi) = force would include removal of obstructions or ignoring the servient owner

Question 51

re: prescription

explain the ‘as of right, secrecy’ element

Answer 51

Without secrecy (nec clam) = the user must be open and not hidden, such that a ‘reasonable person in the position of the alleged servient owner, diligent in the protection of his interests, would have a reasonable opportunity of discovering the right asserted’

Question 52

re: prescription

explain the ‘as of right, permission’ element

Answer 52

Without permission (nec precario) = permission can be oral or in writing. Payment to the servient landowner indicates permission. Toleration without objection will not prevent a prescriptive easement.

Question 53

explain prescription at common law

Answer 53

If the user has continuously enjoyed the right for more than 20 years, it will be presumed they have done so since 1189.

Question 54

how can prescription at common law be rebutted? Give an example.

Answer 54

This can be rebutted if it can be shown that as some time since 1189:
o The right was not exercised;
o The right could not have been exercised;
o The dominant and servient tenement were vested in the same owner (unity of seisin)

i.e. Sam brought a new build house in 1990. The land used to be owner by a farmer. They argue they have acquired an easement against the farmer. Whilst the time element is satisfied, they cannot argue the easement was prescribed at common law because this can be rebutted on the basis the dominant and servient tenement were owner by the same person. They would need to rely on a different method of prescription.

Question 55

explain prescription under the Doctrine of Lost Modern Grant

Answer 55

this is a last resort where it is not possible to rely on the other means of establishing a prescriptive easement fail, typically because it does not align with requirements of other doctrines

Question 56

what are examples of when someone might try to rely on the doctrine of lost grants?

Answer 56

It is used where prescription fails for other reasons i.e.
o There are gaps in the 20 years of continuous use (specifically, use has been interrupted by more than one year)
o the dominant and servient tenements were under common ownership at some point

Question 57

what is prescription under the Prescription Act 1832?

Answer 57

If the dominant owner can show user as of right for 20 years (30 years for profits) then they will obtain a prescriptive easement even though the user clearly commenced sometime after 1189

Question 58

what must the claimant prove when arguing that they have prescribed an easement under the Prescription Act 1832?

Answer 58

C must prove uninterrupted enjoyment for at least 20 years and which terminates in an action

o The period of 20 years is counted backwards from the date of action

o Short interruptions of less than a year are permitted. If longer the clock, the 20 year clock would restart

Question 59

when considering the Prescription Act 1832 in an SBAQ, what should you look for in the fact pattern?

Answer 59

right that has been exercised for 20 years (30 years for profits) or more as between two distinct parcels of freehold land.