Easements

Question 1

Define Easement

Answer 1

An easement is a right enjoyed and exercised over the land of another. It is one of the few interests in land which is capable of being a legal interest: s 1(2) LPA 1925. Whether it is in fact legal will depend upon whether the requirements as to duration and formalities have been satisfied.

Question 2

Positive/Negative

Answer 2

An easement can fall into two categories: it can be either positive or, much less frequently, negative in nature.

A positive easement is one which allows the holder of the easement to use the land of another in a particular way. A classic example is a right of way which allows the holder of the easement to cross the land of another.

A classic example of a negative easement is a right to light. This primarily allows the holder of the easement to enjoy light across his neighbour’s land and onto his own. This does not involve actually entering the neighbour’s land at all

Question 3

Rights analogous to Easements

Answer 3

Quasi-easements - Unformed, nebulous rights exercised by a landowner over his own land, which could exist as a separate easement should the land over which the right is exercised change ownership/be divided, are called quasi-easements. you cannot have an easement over your own land. If you are parking your car on the drive it is because you own the driveway, not because you have an easement to park. The right to park is a quasi (potential) easement as this point.

Natural rights - Ownership of land carries with it certain natural rights. One of these is the right to support of land in its natural state. There is, however, no natural right of support to a building erected on the land. For this there must be a proper easement.

Public rights - Public rights can be similar to easements, but instead of being exercised by an individual person or body, the right, by its nature, is exercised by general members of the public. The best example is a public right of way.

Licences - A licence can authorise the use of land in the same way as an easement. A licence, however, cannot exist as an interest in the land. It confers a mere personal right, which may or may not be accompanied by consideration.

Restrictive covenants - The primary function of a restrictive covenant is to restrict what can be done on the servient land. It is a promise in respect of the land. The primary function of an easement is to give the dominant owner some use of the servient land. It is a consequence of the fact that the easement exists that the servient land owner may be restricted as to what he can do on his land.

Question 4

When is a right capable of being an Easement

Answer 4

For a right to be capable of existing as an easement, it must satisfy certain requirements laid down in the case of Re Ellenborough Park [1956] Ch 131:
• there must be a dominant and a servient tenement;
• the right must accommodate the dominant tenement; • there must be diversity of ownership of the dominant and servient tenements; and
• the right must lie in grant.

Question 5

Re Ellenborough Park - there must be a dominant and a servient tenement

Answer 5

Essentially, this means that there must be two identifiable pieces of land; one which benefits from the exercise of the right (the dominant tenement) and one which is burdened by its exercise (the servient tenement): London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278.

Question 6

Re Ellenborough Park - Accommodating the Dominant Tenement

Answer 6

For a right to be capable of existing as an easement, it must be found to have some form of direct benefit on the dominant tenement.

What is certain is that a right which provides a mere personal benefit to its holder will not suffice to allow the right to become an easement. So, when considering whether a right does accommodate the dominant tenement, a useful question to ask is whether this right would be of benefit to any owner of the dominant land, irrespective of who they are.

Another factor which the courts look at in determining this issue of accommodation, is whether the right positively affects the value of the dominant tenement. Where it does, this may be used as evidence that the right accommodates that land

Establishing ‘accommodation’ can prove to be problematic where a right claimed benefits a business run from the land - see Hill v Tupper & Moody v Steggles

To be seen to accommodate the dominant tenement, it is also necessary to show that the dominant and servient tenements are sufficiently proximate to one another. Without such proximity, it may be difficult to prove that there is some benefit conferred upon the dominant tenement by the right being exercised over the servient tenement.

Question 7

Re Ellenborough Park - Diversity of Ownership

Answer 7

The dominant and servient tenements must be owned or occupied by different persons, A person cannot have an easement over his own land. Any rights that a person exercises over one part of his own land for the benefit of another part of his land are the natural incidents of ownership. Such rights are known as quasi-easements; they are capable of becoming easements on division of ownership

Question 8

Re Ellenborough Park - ‘Lie in Grant’

Answer 8

Capable Grantor and Grantee - There must be a capable grantor and grantee: they must have separate legal personalities (LPA 1925, s 1(6) and s 22). A corporation or individual person qualifies but not a vague fluctuating body, such as the inhabitants of a village. Equally, the grantor must have sufficient ownership of the servient land to be able to grant an easement (i.e. must own a freehold or leasehold estate).

Capable of Reasonably Exact Description - The subject matter, i.e. the nature and extent of the right, must be capable of reasonably exact description. There can be no easement if the nature of the right is too vague. Thus, there can be no easement of prospect

Question 9

The right should be within the general nature of the rights traditionally recognised as Easements

Answer 9

Examples

The following have been held to be capable of being the subject matter of easements:
(a) rights of way – Borman v Griffith [1930] 1 Ch 493;

(b) rights of light – Colls v Home & Colonial Stores Ltd [1904] AC 179;
(c) rights to water in a defined channel – Race v Ward (1855) 4 El & Bl 702;
(d) rights to air in a defined channel – Wong v Beaumont Property Trust Ltd [1965] 1 QB 173;
(e) rights to support – Dalton v Angus & Co (1881) 6 App Cas 740;
(f) rights of drainage through a defined channel and other rights of ‘pipeline’, for example gas, electricity etc – Atwood v Bovis Homes Ltd [2001] Ch 379;
(g) rights to use facilities such as the use of a golf course, swimming pool or tennis court – Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another [2015] EWHC 3564 (Ch).

Question 10

New/non traditional easements?

Answer 10

in recognising the existence of new easements, two points must be borne in mind. The right in question:

1. must satisfy all the requirements under Re Ellenborough Park, as discussed above; and
2. should not be negative in nature.

Question 11

Additional limitations to becoming an Easement?

Answer 11

Expenditure by the Servient Tenement Owner - Where the exercise of the right requires the servient tenement owner to spend money, the right cannot be an easement. Thus, in Regis Property Co Ltd v Redman [1956] 2 QB 612, it was held that a claim to the supply of hot water was not an easement.

Exclusive Possession - Where the exercise of the right being claimed effectively amounts to giving the dominant tenement owner exclusive possession of the servient tenement, the right cannot be an easement. (see Copeland v Greenhalf, Grigsby v Melville and Jackson v Mulvaney)

Dependence Upon Permission by the Servient Tenement Owner - Although express permission from the servient tenement owner is often present when an easement is initially granted, if the dominant tenement owner has to seek fresh permission every time they wish to exercise the right, it cannot be an easement.

Question 12

Acquisition of Easements

Answer 12

Where a right has succeeded in meeting all the requirements of Re Ellenborough Park and thus deemed capable of being an easement, it will only become one if it has been acquired in an appropriate way.

There are three keys methods of acquisition that you need to understand:
• express
• implied
• prescription

Question 13

Express Acquisition of Easement

Answer 13

This can occur by way of either an express grant or an express reservation.

What is the difference between the two?

An express grant of an easement is where someone, A, has decided to expressly give to another, B, an easement over A’s land. Whilst an easement may be expressly granted to another at any time, they commonly arise where land is being sold/leased to another and the express grant of the easement will appear in the relevant written documentation.

An express reservation differs from an express grant in that rather than giving an easement to another, A reserves the right for their land to enjoy the benefit of an easement. As it is A’s land which will enjoy the benefit of this easement, A becomes the dominant tenement owner. These commonly arise in situations where A owns a large piece of land and decides to sell/lease some of that land to another, B. Where A wishes to retain rights over the land that they are selling/leasing to B, he will expressly reserve such rights for the benefit of the land being retained in the relevant written documentation.

Note that any easement which has been expressly reserved will be construed strictly against the person who reserved the right, in our example above, A. This is because when A reserves the right they have full control and are in a position to reserve exactly what they need, and the court will assume that they have done this.

Question 14

Implied Acquisition of Easement

Answer 14

In circumstances where someone has not acquired an easement expressly, it may be possible for him to rely upon the easement having been impliedly acquired instead.

There are four key methods of implied acquisition:

• necessity
• common intention of the parties
• Wheeldon v Burrows (1879) and
• LPA 1925, Section 62.

Question 15

Necessity

Answer 15

An easement will be implied out of necessity where it can be shown that its existence is essential in order that any use of the dominant tenement can be made. It is not enough that the right in question merely adds to the enjoyment of the dominant tenement. In practical terms, the only example is a right of way to a piece of land that would otherwise be landlocked.

No easement of necessity will be inferred if there is some other means of access to that land, even if difficult and inconvenient, for example by water as in Manjang v Drammeh (1990) 61 P & CR 194.

What is certain is that an easement will not be implied out of necessity merely because it can be seen as highly advantageous to the dominant tenement, such as easements of drainage, sewerage and the supply of electricity. Notwithstanding their desirability, it cannot be alleged that without these easements the dominant tenement cannot be used at all.

Question 16

Common Intention

Answer 16

An easement will be implied by common intention where land has been sold/leased to another for a very particular purpose and that purpose cannot be fulfilled without the easement sought.

With an implied grant under this head, the parties must have had a specific intention that the land was to be used for a certain purpose in circumstances where the court is satisfied that the easement claimed is necessary to achieve that specific intention. The test is somewhat narrower with implied reservations where the claimant needs to show that there was a common intention that the specific easement was intended to exist, despite not having taken the steps to ensure its express acquisition.

See - Wong v Beaumont Properties Limited [1965] 1 QB 173

Question 17

Wheeldon v Burrows (1879) 12 Ch D 31

Answer 17

Essentially, under this rule, where a person, A, owns a plot of land and decides to sell/lease some of this land to another, B, B will impliedly acquire as easements all those rights which A had previously exercised over the land they retain for the benefit of the land they have just sold/leased to B. Prior to the sale/lease, these rights were enjoyed by A as ‘quasi-easements’. They were not fully fledged easements, as a person cannot have an easement over their own land. But once there is a division of ownership and occupation of the land, any quasi-easements that exist at the time of the division can become fully fledged easements benefiting the land which has now become the dominant tenement, provided the requirements under this rule are met. The rule can only operate on a sale or lease of part when, immediately prior to the sale/lease, there was a common owner and occupier of the whole (see Kent v Kavanagh [2007] Ch 1,

the rule can also operate in circumstances where the owner of a large plot of land decides to split the land in two and sell both plots contemporaneously. The new owners of each plot will acquire as easements any quasi-easements which had, prior to the sale, been exercised for the benefit of the land they have now purchased (see Swansborough v Coventry (1832) 9 Bing 305 131 ER 629). Remember that this method of acquisition cannot be relied upon in circumstances where someone is trying to claim an easement has been impliedly reserved in his favour. For easements to be implied under this method of acquisition, certain requirements must be met. It must be shown that the right being claimed is:

Continuous and Apparent

Necessary to the Reasonable Enjoyment of the Dominant Land

In Use at the Date of the Transfer

Question 18

Law of Property Act 1925, section 62

Answer 18

LPA 1925, s 62 was enacted as a word saving provision to ensure that conveyances of land did not have to list each of the various interests attaching to a piece of land. It consequently plays a very valuable role in allowing all rights attached to and benefiting a piece of land (eg the benefit of easements, profits, restrictive covenants etc) to pass automatically to a successor in title of that land without the laborious need to individually list each of those rights expressly within the deed of conveyance.

It has been interpreted to elevate mere licences or privileges enjoyed by a piece of land, over neighbouring land retained by the grantor, into fully fledged easements on a subsequent conveyance of the dominant land. So, for example, a landlord who out of kindness allowed his tenant to use a short-cut, over land retained by the landlord, might inadvertently turn that personal permission into an easement if he renewed his tenant’s lease by deed.

1. This method, similar to the rule in Wheeldon v Burrows, cannot be relied upon by someone trying to claim that an easement has been impliedly reserved in his favour. It is only available to someone seeking to claim that an easement has been impliedly granted to them.
2. Unlike acquisition under the rule in Wheeldon v Burrows, this method can only operate where there has been a conveyance by deed, which includes the legal sale of a freehold and the grant of a legal lease. It cannot operate upon a mere agreement (i.e. contract) to grant a lease.
3. As with the operation of the rule under Wheeldon v Burrows, it is possible to exclude this method of acquisition expressly in the conveyance: LPA 1925, s 62(4).

Cases where there has been a successful claim to an easement under LPA 1925, s 62 have usually been in the context of a pre-existing landlord/tenant relationship, consistent with the once wholly accepted requirement for prior diversity of occupation laid down in the case of Sovmots: see Wright v Macadam

Question 19

Acquisition of Easement through Prescription

Answer 19

Under this method, easements can be acquired where they have been exercised over a piece of land for a long period of time, but where no actual grant of the right can be traced.

A claim to a prescriptive easement will fail where the use, while not surreptitious, is unknown to and unsuspected by the plaintiff.

The exercise of the right must be by/on behalf of one owner of a fee simple estate (freehold) against another owner of a fee simple estate, who knows of the use and is unable to resist it. Therefore a tenant cannot claim an easement by prescription.

The use must be continuous, subject to permitted interruptions where a claim is made under the Prescription Act 1832. There are three methods by which an easement can arise through prescription:

• Common Law Prescription
• Lost Modern Grant
• Prescription Act 1832

Question 20

Easement - Legal

Answer 20

To be a legal easement, the right:

(a) must have been created for a duration equivalent to one of the two legal estates in land, i.e. a term of years absolute or a fee simple absolute in possession, as required under LPA 1925, s 1(2); and
(b) must have been acquired by deed, as required under LPA 1925, s 52. (Remember, the requirements for a valid deed are laid down in LP(MP)A 1989, s 1 as discussed in earlier chapters of these study notes.)
(c) In addition, where the easement is arising through express acquisition over a registered piece of land, that easement must be substantively registered to become legal: LRA 2002, s 27(2)(d). Failure to register the easement means that, at best, it could only be equitable in status, despite having satisfied the two requirements outlined immediately above.

Easements acquired through implied acquisition demand no such registration requirement to become legal. Provided they have been implied into a legal conveyance (i.e. a transfer deed or legal lease) they will be legal. Similarly, easements acquired through prescription do not need to be registered to be legal.

Question 21

Easement - Equitable

Answer 21

An equitable easement will arise in the following circumstances:

(a) The grantor of the easement has an equitable rather than a legal estate. The minimum requirement here is that the easement must be in writing and signed by the grantor: LPA 1925, 53(1)(a). This type of equitable easement is very rare.

(b) An easement has been created for an uncertain duration (and therefore does not fall under the LPA 1925, s 1(2) definition of a legal easement) the grant again needs to comply with LPA 1925, s 53(1)(a).
Easements 17

(c) The parties have failed to fulfil the formal requirements for the creation of a legal easement (for example, by not utilising a deed or by failing to register an expressly granted/reserved easement granted out of registered land). Where this has occurred it may be possible to see the failed attempt to grant an easement as an agreement (contract) to create it. Obviously, to be able to do so the failed attempt must fulfil the requirements for a valid contract as stipulated in LP(MP)A 1989, s 2. Where a valid contract exists and is one deemed capable of specific performance, the application of the maxim ‘equity sees as done that which ought to be done’, enables equity to see this failed attempt to create a legal easement as creating an equitable one instead.
(d) The parties have deliberately entered into a contract to grant a legal easement in the future. The contract must comply with the formalities in LP(MP)A 1989, s 2 and be one that is capable of specific performance. It is then the application of the maxim discussed above which allows an equitable easement to arise from this contract.
(e) The easement is implied in the acquisition of an equitable estate. As this is an implied easement there are no additional formalities to comply with; the easement must simply be implied into a document which creates an equitable estate.

Question 22

Passing the benefit of an Easement to a successor of the Dominant Tenement

Answer 22

A conveyance of the dominant tenement to a successor in title will pass to that successor in title not only all buildings, fixtures etc that are on the land, but also the benefit of any easements appertaining to the land at the time of the conveyance: LPA 1925, s 62. This is the ordinary use of s 62 (as described above). Consequently, where only the dominant tenement is conveyed, it is not necessary to consider the registration requirements of easements to protect them against third parties.

Question 23

Enforcing the Burden of an Easement against a

Successor of the Servient Tenement

Answer 23

Where a person purchases land which is subject to the burden of an easement (servient tenement), it becomes necessary to determine whether this purchaser will be bound by this easement. This will depend upon whether the easement is legal or equitable and whether it exists over registered or unregistered land.

Question 24

Enforcement against servient successor - Where the Servient Tenement is Registered Title - Legal Easement

Answer 24

Expressly Acquired - Such an easement is a registrable disposition (LRA 2002, s 27(2)(d)) and requires registration in order to exist as a legal easement (as discussed above). Once it is registered, it will bind anyone who acquires the servient tenement, whether that person buys it, inherits it or receives it as a gift. In practice, this means that the owner of the dominant tenement must be registered as the owner of the easement. The registrar must then enter a notice on the charges section of the register of the servient tenement (LRA 2002, s 38).

Implied acquisition or by prescription - While these easements may not be evident in any documentation, they still have the ability to bind subsequent purchasers of the servient tenement. This is because such easements are potentially ‘overriding interests’ under LRA 2002, Sch 3 para 3, and will therefore bind any subsequent owner of the servient tenement (irrespective of not appearing anywhere on the register), provided either:

(i) the easement is within the actual knowledge of the person to whom the disposition is being made; or
(ii) it is obvious on a reasonably careful inspection of the land over which the easement is exercisable; or
(iii) it has been exercised within a year before the date of the purchase.

Question 25

Enforcement against servient successor - Where the Servient Tenement is Registered Title - Equitable Easement

Answer 25

An equitable easement should be protected by a notice on the charges section of the register of the servient tenement (LRA 2002, s 32). The easement will then be binding on any subsequent owner of the servient tenement (LRA 2002, s 29(2)). If the notice is not entered, the equitable easement will not normally bind a purchaser for value of the servient tenement (LRA 2002, s 29(1)), but will still bind everyone else: for example, people who are given the land, or who inherit it (LRA 2002, s 28). The only means by which it might be possible to hold that an unprotected equitable easement would bind a purchaser for valuable consideration would be if it were held to be an overriding interest under LRA 2002, Sch 3 para 2.

Question 26

Overriding interest under LRA 2002, Sch 3 para 2.

Answer 26

Paragraph 2 provides that, an interest belonging to a person in actual occupation of land overrides registered dispositions, subject to four exceptions.

The first exception is the same as the exception that applies on first registration. That is, where the interest arises under a settlement under the Settled Land Act 1925.

The second exception adopts one of the principles under the current law. If the person with the interest is asked before the disposition occurs and he or she fails to disclose the interest when that could reasonably have been expected, then overriding status is lost.

A new exception relates to the rights of a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition and which the person acquiring the interest did not know about at that time. To fail the test as formulated in the Act, it is the occupation that has to be obvious not the interest.

Lastly, there is excepted from overriding status a leasehold estate granted to take effect in possession more than three months from the date of grant but which has not taken effect in possession at the time of the disposition. This exception will not often apply and will only occur when the lease in question has not been registered and the person to whom the lease was granted was for some other reason already in occupation.

Question 27

Enforcement against servient successor - Where the Servient Tenement is Unregistered Title - Legal Easement

Answer 27

Legal easements, whether arising through express or implied methods of acquisition, or by prescription, are rights in rem and bind the whole world irrespective of notice (Mercer v Liverpool, St Helen’s & South Lancashire Railway Co [1903] 1 KB 652, 662).

Question 28

Enforcement against servient successor - Where the Servient Tenement is Unregistered Title - Equitable Easement

Answer 28

Those created since 1 January 1926 are registrable as Class D(iii) land charges at the Central Land Charges Registry in Plymouth. If so registered, they are binding on everyone who acquires the servient tenement (LPA 1925, s 198). If not so registered, then a purchaser of a legal estate for money /‘s worth will take the land free of the easement. Anyone else would still be bound by it (Land Charges Act 1972, s 4(6)).

Question 29

Extinguishment of Easements

Answer 29

Express release - a deed is necessary for an express release of a legal easement

Implied Release - implied where the dominant tenement owner abandons his rights. This is a question of fact and mere non-user is generally insufficient, unless accompanied by some act adverse to the enjoyment of the right, evidencing an intention on the part of the dominant tenement owner to abandon the right.

Unity of possession - If there is unity of possession the right is merely suspended, but once possession and ownership are in the same hands, the easements are extinguished.

Statute - There is no statutory provisions equivalent to LPA 1925, s.84, which allows the Lands Tribunal to discharge or modify restrictive covenants. However, there are a number of statutes that allow easements to be terminated. For example, under the Town and Country Planning Act 1990, local authorities may, in the course of development, end easements.

Question 30

Remedies

Answer 30

The following remedies are available to enforce rights held under easements:

• Injunctions - It is possible to apply for an injunction in order to prevent the interference which the dominant tenement owner complains of. However, such an action is unlikely to be justified where the infringement is only trivial or temporary and would be oppressive to the servient tenement owner and can be adequately compensated by a money payment.

Damages - the dominant tenement owner could seek damages to compensate for any loss caused by infringement. However, as with injunction applications, you must establish some substantial interference with the enjoyment of the easement to be successful in such a claim.

• Abatement - This self-help remedy allows the dominant tenement owner to remove any obstruction which is preventing the use of the easement. However, this remedy must be effected without any force being used, other than is reasonably necessary, neither causing injury to any third party. It should be noted that this remedy is not favoured by the courts. The law prefers that remedy be sought through the courts rather than by self-help.