Easements Flashcards
What is an easement?
Where does definition come from?
According to Halsbury’s Laws, 4th ed. Vol. 14 Para 1
It is a right annexed to land to utilise other land of different ownership in a particular manner (not involving taking natural produce or soil) or to prevent the owner of the other land from utilising their land in a particular manner
It is one of the most important rights that can be held by one person over land belonging to another person
What must be shown for an easement to exist?
(General Requirements)
- must show that the right you are seeking is capable of being an easement – meaning it fits the definition of an easement
- must show how the easement was acquired (it must be created or acquired in some way, not just appear as an easement). This can be through express grant or reservation, implied grant or reservation, or prescription
What are the four elements of an easement according to Re Ellenborough Park 3 ALL ER 667?
- There must be a dominant and servient tenement. There must be two bits of land involved
- An easement must accommodate the dominant tenement. It must benefit the land itself, not merely the owner personally
- The dominant and servient owners must be different persons. You cannot have an easement with yourself
- A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant. This means the right must be capable of being granted by deed.
What are the dominant and servient tenements?
- Dominant Tenement is the land that has the benefit of the easement
- Servient Tenement is the land that bears the burden of the easement
They also run through successive ownership
What does it mean for an easement to ‘accommodate the dominant tenement’?
The right must benefit the land, not just the current owner regardless of location.
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The tenements must be sufficiently close to one another. An easement cannot exist if the dominant tenement is in Northumberland and the servient tenement is in Kent (Bailey v Stephens (1862)). Re Ellenborough Park shows that houses sufficiently close satisfy this.
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The right must be of a kind that can benefit the dominant tenement, including a right that benefits a business or trade carried out on the dominant tenement (Moody v Steggles (1879) - right to hang a sign for a pub).
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This is distinguished from a personal right that does not accommodate the land ** (Hill v Tupper (1863) - exclusive right to put pleasure boats on a canal was not an easement)**
Why must the dominant and servient owners be different persons for an easement to exist?
It is redundant to have an easement over your own land
While a “quasi-easement” may exist when one person owns both pieces of land, it only becomes a true easement upon a partition of ownership.
What does it mean for a right to be ‘capable of forming the subject matter of a grant’?
It means the right claimed as an easement must be capable of being granted by deed.
Therefore:
- The easement must have been granted by someone with the power to do so and to a definite person
- The easement must be sufficiently certain and have parameters to know when someone has exceeded their rights - Rights to indefinite privacy (Browne v Flower) and a view (William Aldred’s Case (1610)) are not sufficiently certain. A right to drain water by percolation is also not sufficiently certain (Palmer v Bowman )
- The easement must be the sort of right normally recognised by the courts.
- It should be ‘of the same kind’ as existing easements.
- It should not oblige the servient owner to spend money (with a debatable exception for fencing).
- It should not amount to possession of the servient tenement; the servient owner must still be able to use their own land (no ‘ouster’).
What is the difference between positive and negative easements?
- Positive easement: grants the right to do something on the servient tenement
- Negative easement: grants the right to prevent the owner of the other land from using their land in a particular manner, protecting a benefit enjoyed without action by the dominant owner (e.g., right to support, right to light)
courts are unlikely to expand negative easements because they restrict the servient tenement owner and hamper development (*Phipps v Pears *, *Hunter v Canary Wharf Ltd *)
What does it mean for an easement to be ‘annexed to the land’ and why does an easement ‘not exist in gross’?
“Annexed to the land” means the easement is **proprietary and binds to the land, benefiting successive owners of the dominant tenement. **The benefit runs with the dominant tenement and the burden runs with the servient tenement through successive ownership
An easement cannot exist in gross because it is about proximate pieces of property, not a personal right independent of land ownership. Such rights are creatures of contract law
What are the main ways an easement can be acquired?
- Express
- Implied: Necessity, Common intention, Rule in Wheeldon v Burrows, Section 62 of the Law of Property Act 1925
- Prescription: (acquisition from long use or enjoyment
How can an easement be created expressly?
- An express easement can be created through deed or inserted into sale documents of a house/land
- An express grant of a legal easement must be made by deed and completed by registration to operate at law (Land Registration Act 2002 s. 27(1) & (2)(d))
- Without a deed, it may operate as a contract to create a legal easement if Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (LPMPA 1989) is satisfied (Equitable easement)
- A legal easement can only be granted out of a legal estate.
- Equitable easements must be noted on the charges register
- An express reservation of an easement is often in the transfer of land to the new servient owner (LPA 1925 s 65). Section 65 allows the reservation to operate at law without the grantee executing the conveyance.
A reservation needs to be registered against the servient tenement owner.
What is an implied grant or reservation of an easement?
- An implied easement is one that is ‘read into’ a document transferring title when land is divided or leased
- It arises without being explicitly stated in the transfer
- It is more common for an easement to be implied in favour of the transferee (implied grant) than the transferor (implied reservation
- The terms quasi-easements, quasi-dominant, and quasi-servient are used to describe rights that are like easements but not yet because the properties were in common ownership
How does an easement of necessity arise by implied reservation?
- An easement of necessity is implied by reservation only if the land retained by the transferor would be completely unusable without the easement, such as landlocked land with no access to the highway
- If there is any other way of reaching the land, even if impractical (like climbing down a cliff in Titchmarsh v Royston Water Co (1899)), no easement of necessity will be implied
The principle of ‘a man cannot derogate from his own grant’ means courts are less sympathetic to a transferor claiming a reserved easement
How does an easement arise by implied reservation based on common intention?
Easements can be reserved if it was the common intention of both parties at the time of the transfer that the easement should be created, based on their intended use of the land (Jones v Pritchard, Peckham v Ellison)
However, the courts have a higher burden of proof for a transferor claiming a reserved easement based on common intention compared to a transferee claiming an implied grant
How does an easement arise by implied grant based on necessity or common intention?
Necessity (Implied Grant): Similar to implied reservation, an easement of necessity may be granted to ensure the transferred land can be used (e.g., access to land sold)
Common Intention (Implied Grant): An easement can be implied into a transfer if the court finds it was the common intention of the parties that such an easement should exist to give effect to the agreement, even if not explicitly stated (e.g., easements needed by tenants in silent leases - *Liverpool City Council v Irwin *, *Wong v Beaumont Properties *). Courts will imply easements needed to give effect to the agreement
What are the requirements for an implied grant of an easement under the Rule in Wheeldon v Burrows (1879)?
This rule applies upon the grant of part of land.
* An easement will be implied in favour of the grantee for rights that are:
- In the nature of easements (quasi-easements).
- Continuous and apparent. This means it must be fairly obvious that the easement exists and has done so for a long time, detectable on reasonable inspection (e.g., a worn track is sufficient indication of an easement of way- Hansford v Jago).
- Necessary to the reasonable enjoyment of the property granted. The ‘necessity’ here is not as strict as in easements of necessity. It’s unclear if this is an additional requirement to ‘continuous and apparent’ or an alternative.
- Used by the grantor for the benefit of the part granted at the time of the grant
How does Section 62 of the LPA 1925 operate to create easements by implied grant?
Section 62 is a statutory provision that can transform a licence into a legal easement upon a conveyance of land, provided the right is capable of being an easement (fits the Re Ellenborough Park criteria)
A conveyance includes a transfer of a legal estate in land by deed and a lease or renewal of a lease
The crucial language is “enjoyed with” the land at the time of conveyance. If a permission (licence) with the characteristics of an easement is being enjoyed by the land at the point of conveyance, Section 62 can elevate it to a full legal easement if not expressly excluded
What was the significance of Wright v Macadam in relation to Section 62 LPA 1925?
A landlord (L) granted a tenant (W) a lease of part of his land and later gave W permission (a licence) to store coal in a coal shed on L’s retained land.
When L renewed W’s lease (which is a conveyance under s. 62), the licence to store coal was transformed into a legal easement because it was a right capable of being an easement and was being enjoyed with the land at the time of the conveyance.
This was important as coal was the primary way of heating the house.
This case highlights how Section 62 can create easements even from informal permissions upon a formal conveyance
How are easements acquired by prescription?
Prescription is the acquisition of an easement from long use or enjoyment
The use must be as of right (nec vi, nec clam, nec precario), meaning without force, without secrecy, and without permission
What are the different methods of claiming prescriptive easements?
- Common Law Prescription: Relies on proving use since time immemorial (theoretically 1189), which is very difficult, so the courts developed the presumption of use since legal memory based on 20 years’ continuous use.
- Doctrine of Lost Modern Grant: If 20 years’ continuous use as of right is proven, the law presumes that a grant of the easement was made and has been lost, even if no such grant ever existed. This can be defeated if it was impossible for a grant to have been lawfully made
- Prescription Act 1832 (PA 1832): Provides statutory methods for acquiring easements based on 20 or 40 years’ user. For a right of way or use of water, 20 years’ uninterrupted use “next before some suit or action” allows the claim unless there is written consent. 40 years’ uninterrupted use gives an absolute and indefeasible right unless it was enjoyed by written consent. The Act has specific rules and complexities.
The Law Commission Report has commented on the ways these things arise
Detail the requirement that an easement must be capable of forming the subject matter of a grant - Sufficiently Certain.
Include some examples of rights deemed too uncertain to be easements
The right must be definite enough to be described in a deed.
- If the right cannot be described with sufficient certainty, it could not have been granted.
Some examples of rights deemed too uncertain to be easements:
- Right to indefinite privacy (Browne v Flower (1911)) - what constitutes privacy is too vague.
- Right to a view (William Aldred’s Case (1610)) - the nature of a view can change over time. This is different from the right to light which is defined by the apertures.
- Right to drain water by percolation through land (Palmer v Bowman (1999) - lacks a defined channel
Detail the requirement that an easement must be capable of forming the subject matter of a grant - Not Obliging Servient Owner to Spend Money.
Mention a recent exception arising in case law
- The general rule is that an easement should not oblige the servient owner to spend money as a result of the easement.
- There is one main exception: the easement of fencing, which is debatable and sometimes considered a “spurious easement” as it blurs the line with covenants.
- The existence of an easement of fencing has been recognised in cases like Crow v Wood , where it was found it could be created by implied grant and pass under LPA 1925 s. 62.
- More recent cases like Churston Golf Club v Haddock have further explored the possibility of a positive obligation (like fencing) arising as an easement, although the Court of Appeal maintained that you cannot create a positive covenant as an easement. Express grants of fencing easements are still possible
Detail the requirement that an easement must be capable of forming the subject matter of a grant - Not Amounting to Possession
- An easement is an incorporeal hereditament, meaning it does not grant possession of the servient land to the dominant owner, unlike freehold or leasehold estates.
- It grants the dominant owner the use of the servient land for a specific purpose, in common with the servient owner.
- An easement cannot stop the servient owner from using their own land.
- If the right claimed has the effect of using up the whole of the servient land, it is too extensive to be an easement; this is called ouster.
- Copeland v Greenhalf (1952) illustrates this, where a wheelwright’s claim to park numerous vehicles on a strip of land was rejected as it amounted to joint occupation
What is the issue with car parking easements
issue of car parking easements has been complex, with case law fluctuating on the tolerable extent.
The courts have moved from focusing on ouster to the degree of sufficient control retained by the servient owner.
Cases like
* London v Blenheim Estates, Batchelor v Marlow,
* Hair v Gillman,
* Platt v Crouch,
* Wright v Macadam,
* Mulvany v Gough,
* Moncrieff v Jamieson,
* Begley v Taylor,
* R Square Properties Ltd v Nissan Motors Ltd demonstrate this evolving jurisprudence.
The test is approached adversarially, considering whether the dominant owner has sufficient control to effectively prevent the servient owner’s reasonable use.
What are some common types of easements?
- Rights of Way.
- Rights of Light.
- Rights of Water.
- Rights to Air.
- Rights to Storage.
- Rights of Support.
- Right to Fencing.
- Use of Facilities (e.g., lavatories - Miller v Emcer Products, letterbox - Goldberg v Edwards)
Can novel types of easements be recognised?
Include some more recent rights that are debateable easements
New rights should be analogous or similar to established easements
Dyce v Lady Hay (1852) confirmed that new easements can be recognised as circumstances change
However, courts are unlikely to expand negative easements because they restrict the servient owner’s use (Phipps v Pears ). The right to protection from the weather was rejected as a novel negative easement.
- The right to receive uninterrupted television signals was also rejected due to the number of people benefitting would be uncertain and uncertainty and excessive interference with the servient land Hunter v Canary Wharf Ltd
- The potential for future easements like those for roof spaces and solar panels is noted. The possibility of wifi signals being considered in a similar vein to essential facilities in tenement buildings has been discussed
What is the significance if the right to light as an easement?
The right to light is a well-established easement, often acquired by prescription under the Prescription Act 1832.
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The Goldman Sachs and Aberdeen Asset Management and Royal London Asset Management case study illustrates the potential value of this easement, where Goldman Sachs had to negotiate and potentially buy out the right to light from neighbouring pension funds to avoid an injunction due to their new construction.
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The case of *HKRUK II (CHC) Ltd v Marcus Alexander Heaney * (the Heaney case) is a crucial precedent where a judge ordered the demolition of building floors that infringed on an individual’s right to light, highlighting that damages may be unsatisfactory and an injunction granted.
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There is potential of easements going into the future e.g. easements of light for roof spaces and solar panels
What are recreational easements and what is the significance of Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd 2018?
Historically, easements were seen as practical necessities rather than luxuries. ( Re Ellenborough)
- The Regency Villas case concluded in the Supreme Court that recreational rights can constitute easements. In this case, owners of lodges sold with rights to use hotel facilities were held to have a recreational easement over those facilities.
- The case has been criticised for potentially opening the floodgates and raising questions about the obligations on the servient owner to maintain such facilities and who pays for them.
- The judge in the case suggested a public policy perspective encouraging recreational easements.
- There was a minority view arguing against this precedent.
- The case moved the dialogue on regarding the obligations of the facilities to remain open
hat is the difference between a grant and a reservation of an easement?
Grant: An easement may be given by you to someone else to do something over your land.
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Reservation: An easement is kept for/to themselves by the original owner, usually when part of the property is sold (partition). For example, in a conveyance, the seller might reserve a right of way over the land they have sold.
What are statutory easements?
- Easements may also be granted or reserved by statute.
- These are usually in favour of utility companies, such as gas and electricity
suppliers. - Statutory easements will typically be legal easements.
What are quasi-easements?
- Quasi easements are rights that are in the nature of easements but are not yet legal easements because the ‘quasi dominant’ and ‘quasi servient’ tenements are in common ownership.
- They are essentially the exercises of rights over one part of one’s own land that could become easements if that land were to be divided and owned by different people. The concept arises in the context of implied grants, particularly under Wheeldon v Burrows and Section 62 LPA 1925. The ‘quasi’ indicates ‘not yet’ or ‘soon to be’.
