Easements

Question 1

Easement

Answer 1

A proprietary right to use land which belongs to somebody else.

• More limited than an exclusive right to occupy or use
• The person who receives the benefit of the easement is the grantee and their land, which is benefitted by the easement, is the dominant tenement.
• The person who grants the easement is the grantor and their land, which is burdened by the easement, is the servient tenement.

Question 2

Legal easements

Answer 2

• An easement is capable of being a legal interest in land if it fulfils the requirements as to duration.
• LPA 1925 s 1(2)(a); ‘an easement…for an estate equivalent to an estate in fee simple absolute or a term of years absolute’
• e.g. a right of way when part of freehold land is sold will be granted forever.
• e.g. a right of drainage granted in a five year lease will be granted for the term of that lease.

Question 3

Equitable easements

Answer 3

• If an easement is not granted for the equivalent of a freehold or leasehold estate, it can only be equitable.
• LPA 1925 s 1(3): ‘All other estates, interests, and charges in or over land take effect as equitable interests’
• e.g. a right to park which is granted ‘until the alternative parking facility is completed’ can only be equitable as it is not granted forever or for a set period of time.

Question 4

Positive v negative easements

Answer 4

• The majority of easements are positive, in that they allow the holder to use the servient land of another in a particular way.
• e.g. a right of way allows the holder to use a driveway on neighbouring land, a right of drainage allows the holder to use pipes under the land
• Negative easements are rare. They do not involve entering the neighbouring land, as the right conferred can be enjoyed from the holder’s land.
• e.g. a right to light is enjoyed from the holder’s land and simply requires the servient land owner to refrain from blocking the light to the dominant land.

Question 5

Quasi-easements

Answer 5

• Where landowners use paths on their own land they are not enjoying easements, they are using the paths as the owners of the land.
• The use of paths could become easements if the land was ever divided.
• This potential easement is called a quasi-easement.

Question 6

Public rights

Answer 6

• Can be similar in scope to easements, e.g. a right of way
• Instead of being exercised by an individual/particular body however, the right by its nature is exercised by the general public

Question 7

Licences

Answer 7

• Can authorise someone to use the land in the same way as an easement does.
• However, a licence is not a proprietary right in the land: it merely confers a personal right which cannot be enforced against a third party unless it is accompanied by an estoppel.

Question 8

Profits a prendre

Answer 8

• An easement does not confer on the holder the right to take anything, e.g. produce, animals, fish or minerals, from the land.
• A profit a prendre confers such a right. The rules governing profits a prendre are very similar to the rules governing easements.

Question 9

Restrictive covenants

Answer 9

• An easement confers a right over the servient land. As a consequence, the servient owner cannot do anything on the servient land which would interfere with the right, e.g. a route of a right of way cannot be built upon
• By contrast, the primary function of a restrictive covenant is to restrict what is done on servient land.

Question 10

Grant

Answer 10

A grant exists where C, a landowner, sells or leases part of C’s land to D, and gives to D an easement over the land which C has retained.

Question 11

Reservation

Answer 11

A reservation exists where C sells or leases part of C’s land to D, and retains a right over the land sold or leased to D.
- A reservation is strictly construed against the person reserving it, because they are in a position to reserve exactly what is required and are assumed to have done so (Cordell v Second Clansfield Properties)

Question 12

Extent of a grant

Answer 12

• If D has a right over C’s land, D cannot use the right for the benefit of additional land D subsequently buys (Harris v Flower)
• If the use of the right for additional land is merely ‘ancillary’ to the dominant land use, then Harris does not apply and the right can be used.
• In Macepark v Sargaent (No2), use is ancillary if it is not ‘in substance’ for the benefit of the additional land. This means that either there is no benefit to the additional land, or the extent of the benefit is insubstantial so that ir remains for the benefit of the original dominant land.

Question 13

Extent of a reservation

Answer 13

• If C reserves a right of way over land sold to D, the reservation will be strictly construed.
• This means the extent of the reservation will be interpreted on the basis that C was in a position to reserve exactly what he needed, and is assumed to have done this. Any attempt by C to extend the right will fail.

Cordell v Second Clanfield Properties Ltd - Cordell sold development land to Second Clanfield and reserved a right of way over the estate road for the benefit of Cordell’s retained land. When Second Clanfield started to build a bungalow on land adjacent to Cordell’s retained land, Cordell sought a declaration that he was entitled to a right of way 28 feet wide at all times and for all purposes, and sought an injunction to stop the building. Held that if Cordell needed such an extensive right of way, he should have specifically stated it in the transfer deed. The claim failed.

Question 14

Express creation

Answer 14

• Most easements are created expressly.
• They commonly arise when land is sold or leased, and are set out in writing in the transfer deed or lease.
• They can also be expressly created as part of a separate deal, independent of a transfer or lease.

Question 15

Implied creation

Answer 15

• An easement may be deemed to have been created impliedly by one of several recognised methods.
• If an easement is impliedly created, it is effectively written into the document from which it was originally omitted.

Question 16

Prescription

Answer 16

• Easements may also arise by prescription or ‘long use.’
• Generally an easement is claimed by prescription where it has been exercised over land for a long time, yet no express grant or reservation can be traced.
• The right must have been exercised as of right, without force, stealth or permission (nec vi; nec clam; nec precario)

Question 17

Strict tests that must be met before a right can be recognised as an easement rather than simply a personal right

Answer 17

(1) The right must fall within the definition set out in LPA 1925 s 1(2)(a) as to duration. Otherwise it can only be equitable under s 1(3)
(2) The right must be capable in principle of being an easement; it must satisfy the tests in Re Ellenborough Park.
(3) The right must not be prevented from being an easement by presence of one of the disqualifying factors: additional compulsory expenditure by the servient owner, use which amounts to exclusive possession, or permission.
(4) The right must have been acquired as an easement. In one of 3 ways: complying with the statutory formalities for an express grant/reservation, acquired impliedly by one of the recognised methods, or by being acquired by prescription or long use.

• To be a fully enforceable proprietary right known as a legal easement, the right must pass all four stages.

Question 18

Re Ellenborough Park - Facts

Answer 18

Land around Ellenborough Park was developed for housing. The conveyances of the original plots included the right ‘full enjoyment at all times…of the pleasure ground set out and made in front of the said plot of land…in the centre of the square called Ellenborough Park.’ During WWII, the park was requisitioned and the War Office paid compensation for the loss of land. The issue was whether the owners of the plots and their successors had a legal easement to use the park. If they did, then when the park was requisitioned, they lost a legal right, for which compensation should be paid.

Question 19

Re Ellenborough Park - Judgment

Answer 19

Evershed MR set out the four essential characteristics of an easement:

(1) There must be a dominant and servient tenement
(2) The right must accommodate the dominant tenement
(3) There must be diversity of ownership
(4) The right must ‘lie in grant.’
- The court applied these to conclude that the right to use the garden was capable of being an easement.

Question 20

Requirement (1) - There must be a dominant and servient tenement

Answer 20

• There must be two identifiable pieces of land: one which benefits from the exercise of the right (dominant tenement) and one which is burdened by its exercise (servient tenement) (London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd)
• This means an easement cannot exist ‘in gross’; it cannot be exercised by the holder independent of the land (Hawkins v Rutter)

Question 21

Requirement (2) - The right must accommodate the dominant tenement

Answer 21

• The right must have some direct beneficial impact on the dominant tenement.
• Lord Oliver’s tests from P&A Swift Investments Ltd v Combined English Stores Group plc gives useful questions to ask:
  (1) Does the right benefit any owner of the land?
  (2) Does it cease to be of use once the dominant owner has parted with the land?
  (3) Does the right make the dominant land a better or more convenient property?
  (4) Does the right add value or amenity to the dominant land?
• Problems arise when the right appears to benefit a business as well as the land.

Question 22

Benefitting a business v. benefitting the land

Answer 22

• The question is whether the business is a necessary incident to the use of the land, or is a completely unconnected business.
• Hill v Tupper: The right claimed as an easement was a right to put boats on a canal which adjoined the claimant’s land. The right did not accommodate the dominant tenement as it did not benefit the land itself: it simply benefitted the business that the claimant happened to carry out on the land.
• Moody v Steggles: The claimant claimed a right to hang a sign on an adjoining building which pointed down a side street to the claimant’s pub was an easement. The sign benefitted a long-established business which had become the normal use of that land; therefore the right which benefitted the business also benefitted the land itself.
• Seems that a right which benefits a long-established business benefits the land from which it is run, and there are also businesses that by their nature are closely connected to the use of the land, which means rights which benefit the business also benefit the land itself.

Question 23

Dominant and servient land must be sufficiently close to each other

Answer 23

• Normally they will be adjoining but this is not necessary.
• Pugh v Savage: There was a right of way over one field to get to another. There was a third field in the middle. The right of way was still held to benefit the dominant land even though the dominant and servient tenements were not adjoining. They were close enough for the dominant land to derive a benefit.
• Bailey v Stephens: ‘You cannot have a right of way over land in Kent appurtenant to an estate in Northumberland.’

Question 24

Requirement (3) - There must be no common ownership of the two tenements

Answer 24

• The dominant and servient land must be owned by different people (Roe v Siddons)
• Benefits enjoyed over one’s own land are called quasi-easements, capable of becoming easements if the land is ever partitioned.
• ‘Ownership’ could be ownership of a freehold or leasehold estate. A may own a freehold and sell part of it to B, or A may own a freehold and lease part of it to B - this would still be diversity of ownership.
• If the dominant and servient land ever come back into common ownership, any easements would be extinguished e.g. when a lease comes to an end

Question 25

Requirement (4) - The right must lie in grant

Answer 25

• The right must be capable of forming the subject-matter of the deed. It must be:
  (a) granted by a capable grantor to a capable grantee (each party must have a separate legal personality - LPA 1925, s 1(6) and s 22)
  (b) capable of reasonably exact description (must be clear enough for the court to know exactly what is to be enforced)
  (c) judicially recognised (should be within the general nature of rights traditionally recognised as easements)

Question 26

Examples of rights which have been judicially recognised as easements:

Answer 26

Right of way (Borman v Griffith)
Right of drainage and other rights through pipelines (Atwood v Bovis Homes)
Right of support (Dalton v Angus & Co)
Right to use sporting and leisure facilities (Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd)

• The list is not exhaustive (Dyce v Lady James Hay) and develops gradually by analogy
• A new type of easement must not be negative in nature (Phipps v Pears). The appropriate way to restrict development on the sale of land would be to impose a covenant rather than a negative easement.

Question 27

Disqualifying factors

Answer 27

• Once a right has satisfied the requirements of re Ellenborough Park, then in principle it is capable of being an easement.
• However, there are three ‘disqualifying factors’ to consider. The presence of any one of these factors will prevent the right from being capable of being an easement:
  (1) The exercise of the right must not amount to exclusive possession of the servient tenement
  (2) The exercise of the right by the dominant owner must not involve additional, unavoidable expenditure by the servient owner
  (3) The exercise of the right must not depend on permission being given by the servient owner.

Question 28

Disqualifying factor (1) - no exclusive possession

Answer 28

• If the exercise of the right amounts to exclusive possession by the dominant owner, the right cannot be an easement because the use by the dominant owner is too intense.
• Lord Evershed MR, Re Ellenborough Park: An easement must ‘not amount to rights of occupation or…substantially deprive the owners of proprietorship or legal possession of the servient land.’
• Where the servient owner cannot use the servient land at all, it is clear there is exclusive possession.
• However, most cases are not as clear cut and there is no single judicially approved test. The question has come before the courts mostly in connection with parking rights claimed as easements.

Question 29

The ‘ouster principle’

Answer 29

Batchelor v Marlow - Marlow had a right to park six cars on commercial land belonging to Batchelor from 8:30am until 6pm Monday-Friday. Batchelor argued that this use was too intense to be capable of being an easement. CoA applied the ‘reasonable use’ test, looking at the degree of use left to Batchelor. Batchelor was left with no reasonable use of the land, so the right claimed could not be an easement. ‘His right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory.’

Question 30

The ‘possession and control’ test

Answer 30

Moncrieff v Jamieson - Moncrieff claimed a right to park on a cliff top which belonged to Jamieson. Jamieson argued that Moncrieff’s use of the parking space amounted to exclusive possession. Relying on the ouster principle, he argued that he had no reasonable use of the space left. Lord Scott adopted a more flexible test which favours the person claiming the easement: a test which asks whether the servient owner retains ultimate possession and control of the servient land, subject to the reasonable exercise of the right. ‘…sole use for a limited purpose is not, in my opinion, inconsistent with the servient owner’s retention of possession and control or inconsistent with the nature of an easement.’

Question 31

Which exclusive possession test to use?

Answer 31

• The ouster principle is binding law (acknowledged in Kettel v Blomfold Ltd)
• Moncrieff is a Scottish case and so of persuasive authority only.
• In Kettel, the court applied the Batchelor test but in a Moncrieff way.
• The claimant claimed a parking easement. It was held that the servient owner had not been deprived of reasonable use (the ‘ouster’ test) because he could still do anything he liked on the parking area except interfere with the parking (the ‘possession and control’ test)
• The test appears to be changing slightly to favour the person with the easement.

Question 32

Disqualifying factor (2) - No additional expenditure

Answer 32

• If the exercise of a right by the dominant owner requires the servient tenement owner to spend extra money, the right is disqualified from being an easement, as a positive obligation is inconsistent with the concept of an easement.
• A servient tenement is also not obliged to carry out repairs or maintenance to enable the dominant owner to enjoy an easement. Instead, they must allow the dominant owner into the servient land to carry out any repairs at the dominant owner’s expense (Jones v Pritchard)
• Regis Property Co Ltd v Redman: A right to supply of hot water was held not to be an easement as supplying hot water to the claimant meant that the servient owner was forced to spend money.
• Rance v Elvin: the court upheld an easement for a water supply even though the meter was on the servient land and the servient owner was solely responsible for the payment of bills. The court said the servient owner was obliged to allow the water through the pipes, and the dominant owner was liable in quasi-contract to pay his share.

Question 33

Disqualifying factor (3) - No permission

Answer 33

• Express permission will inevitably be given when a right is first used. However, after the initial grant, the dominant owner must exercise the benefit as of right. If the dominant owner asks for permission every time the right is exercised, it cannot be an easement.
• Green v Ashco Horticultural Ltd: The claimant claimed a right to park a van on the defendant’s land was an easement. The claimant had always moved his van if asked to do so by the servient owner. In moving the van on request, the defendant was actually acknowledging that he did not park on the land as of right, but by permission.

Question 34

Exclusive possession - further cases

Answer 34

Copeland v Greenhalf - Upjohn J initially formulated the test. Greenhalf was a wheelwright and claimed an easement to store vehicles awaiting repair and collection on Copeland’s land. The right was not an easement because the use was too extensive. It amounted to an ‘ouster’ of the servient owner from beneficial enjoyment of the land.

Grigsby v Melville - The claimant claimed an easement of storage in the cellar which was under the servient land. The building was unusual as the cellar could only be accessed through the claimant’s property. Because the access to the cellar could only be enjoyed by the dominant owner, the right of storage amounted to an unlimited beneficial use. This was exclusive possession and so the claim for an easement failed.

Question 35

Exclusive possession - importance for parking easements

Answer 35

• Parking easements are extremely valuable, esp. in urban areas. If a landowner can show the parking arrangement is an easement rather than a personal licence, this will add considerable value to the property.
• London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd - clear authority that the right to park in one of several spaces can constitute an easement
• If the right is to park one designated car in one designated space, this amounts to exclusive possession (Batchelor v Marlow)
• Hair v Gillman - The dominant owner claimed a right to park one car in one of several spaces as an easement. The dominant owner did not necessarily use the same space every day. The right was not defeated by the ouster principle so was an easement, because the servient owner still had full use of the remaining spaces.

Question 36

Express legal easements: formalities required

Answer 36

• All expressly granted legal interests must be created by deed (LPA 1925, s 52)
• To be a deed, a document must comply with the formalities in LP(MP)A 1989, s 1:
  (1) must be clear it is intended to be a deed
  (2) signed by grantor and witnessed
  (3) delivered/dated
• The easement must be substantively registered at the Land Registry to be legal (LRA 2002, s 27(2)(d))
• Once this is done, the benefit of the easement is on the Property Register of the dominant land’s title and the burden is on the Charges Register of the servient land’s title.
• If any formalities or registration requirements are not met, the easement may be recognised as an equitable easement.

Question 37

Express equitable easements (failed legal easements): formalities

Answer 37

• Equity may interpret the failed legal transaction as an enforceable contract to create a legal easement.
• The failed legal easement must comply with the formalities for an estate contract set out in LP(MP)A 1989, s 2:
  (1) Must be made in writing
  (2) Must include all expressly agreed terms
  (3) Must be signed by both parties.
• No substantive registration is needed.

Question 38

Express equitable easements (not granted for freehold/leasehold term): formalities

Answer 38

• Easements which do not fall within the definition of legal easements in LPA 1925, s 1(2)(a) because they are not granted or reserved for a freehold/leasehold term can only be equitable. These are described as ‘inherently equitable’ easements.
• They are much less formally created. The minimum formalities under LPA 1925, s 53(1)(a) are:
  (1) Must be made in writing
  (2) Must be signed by the grantor
• No substantive registration is needed for an equitable easement to exist.

Question 39

Implied acquisition

Answer 39

• If an easement is not expressly granted, it may be possible for it to be implied into the document from which it is missing.
• There are several methods by which an easement can be implied into a lease of transfer deed:
  (a) By necessity
  (b) By common intention
  (c) Wheeldon v Burrows
  (d) s 62 LPA 1925

Question 40

Implied acquisition by necessity

Answer 40

• Very narrow scope
• Union Lighterage Company v London Graving Dock Company: An easement of necessity is an easement ‘without which the property cannot be used at all, and not merely necessary to the reasonable enjoyment of the property.’
• The only easement that can be implied in this way is a right of way to otherwise inaccessible land.
• If there is an alternative access route, even if it is inconvenient/difficult, no easement will be implied by necessity, as in the case of Manjang v Drammeh, where it was still possible to access the dominant land by river.
• Pryce v McGuinness - Easements for drainage, sewerage and electricity supply were advantageous but not essential
• Adealon v Merton BC - where the seller sold land forming part of its property to the buyer without granting a right of way, no easement was acquired by necessity over the servient land as it was possible that a third party could grant a right of way over their neighbouring land to the buyer.
• Necessity was given a wider interpretation in Sweet v Sommer, where a right of way in a vehicle was implied by necessity, even though a right of way on foot over the servient land already existed.

Question 41

Implied acquisition by common intention

Answer 41

• Where land has been sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the easement sought
• A general intention as to how the property should be used is not enough; the parties must intend for the property to be used in some definite and particular manner (Pwlllbach Colliery Co Ltd v Woodman)
• An easement may be implied by common intention when it is necessary for the enjoyment of an expressly granted easement, e.g. a right to park usually also requires a right of way

Question 42

Implied acquisition by common intention - Wong v Beaumont Property Trust Ltd

Answer 42

FACTS: A landlord granted a lease of basement premises. In the lease there were two covenants: to use the basement premises only as a restaurant; and to comply with health and safety regulations. It turned out the basement premises needed to be connected to a ventilation system on the landlord’s retained land in order to comply with regulations. It was essential to do this to continue to operate as a restaurant.

HELD: The easement should be implied into the original lease, but there were several conditions that had to be met:

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

Question 43

Implied acquisition by common intention - specific purpose

Answer 43

Donovan v Rana - An easement to provide services such as electricity and sewerage were implied where the common intention of the parties was that the plot in question was purchased as a building plot and would be developed as such. The planning permission for a dwelling was sufficient to show common intention.

Stafford v Lee - The claim was for a right of way. The court held it to be the common intention of the original parties that the dominant land be developed as a residence. The land could not be developed or used for the intended purpose without the right of way for construction and domestic vehicles, and both parties knew on transfer that the land would be used for building a house.

Question 44

Common intention and reservations

Answer 44

• Wong v Beaumont Property Trust Ltd - the easement implied into the original lease was a grant.
• The court also said that the method could be used to imply a reservation.
• There is a heavy burden of proof in reservation cases to show that the specific easement was mutually intended. It would not be enough to just show that the seller or landlord had openly exercised the right prior to the first transaction.

Question 45

Effect of common intention

Answer 45

Implied legal easements: An easement which is implied into a transfer deed or a legal lease is an implied legal easement as the easement takes its status from the status of the document it is implied into.

Implied equitable easements: If the easement were implied into a contract/equitable lease, it is an implied equitable easement.

Question 46

Implied acquisition under Wheeldon v Burrows

Answer 46

Thesinger LJ: ‘On the grant by the owner of a tenement or part of that tenement as it is then used or enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.’

Question 47

Requirements of implied acquisition under Wheeldon v Burrows

Answer 47

• There must be a document to imply the easement into.
• The rule applies only where the right being claimed would have been a grant; it does not operate to imply reservations
• The right must have been enjoyed as a quasi-easement by the seller before the land was divided.
• The quasi-easement must have been ‘continuous and apparent.’
• The quasi-easement must also be necessary for the reasonable enjoyment of the land; this test is met if the quasi-easement is necessary for the convenient and comfortable enjoyment of the land (dicta in Moncrieff v Jamieson)

Question 48

Implied acquisition under Wheeldon v Burrows - quasi-easement must have been ‘continuous and apparent’

Answer 48

Continuous - does not need to have been enjoyed constantly, or incessantly, but there must be some degree of performance. It cannot be a transitory or intermittent right

Apparent - must be some clue as to the existence of the right from a careful inspection of the land. The rule is one of common sense, honesty and decency (Sovmots Investments Ltd v SoS for the Environment)

Question 49

Limits imposed on use of Wheeldon v Burrows

Answer 49

Wheeler v JJ Saunders Ltd:

• If the easement is not necessary for the reasonable enjoyment of the land (in this case the farmhouse could be accessed in an alternative, equally convenient way)
• The quasi-easement must be in use at the date of the transfer or sale. It must be shown to have been used in the recent past, and that it is expected to be used in the near future.

Question 50

Effect of Wheeldon v Burrows

Answer 50

• The easement takes its legal/equitable status from the status of the document it is implied into.
• This makes the scope of W v B wider than the scope of LPA 1925, s 62 which only operates on deeds.
• In practice, because of this wide scope, sale contracts, leases and transfer deeds routinely expressly exclude the effects of Wheeldon v Burrows.

Question 51

Implied acquisition under s 62 LPA 1925

Answer 51

• s 62 states that a conveyance of land includes all easements, rights and advantages enjoyed with that land.
• the traditional interpretation of this is that it is a ‘word saving provision’; ensures that when someone boys freehold land or leases land, they will receive the benefit of all existing easements which affect the land.
• it however now has a much wider function; it has been interpreted as a method by which a brand new easement can be implied into a document.
• known as the ‘upgrade’ method because it operates to ‘upgrade’ informal rights into full legal easements.

Question 52

Implied acquisition under s 62 LPA 1925 - Wright v Macadam

Answer 52

FACTS: Wright was the tenant of part of a house owned by Macadam. During her tenancy, Macadam gave her informal permission to store coal in part of his shed on his retained land. Wright’s lease came to an end and Macadam granted a new one by deed, which didn’t mention the shed. Macadam then tried to charge Wright for this use of the land.

HELD: in Wright’s favour. s 62 operated to imply the informal right to use the shed into the new lease as a full easement.

Question 53

Controversy of s 62

Answer 53

• s 62 only applies to deeds, so means the implied easement becomes a full legal right.
• this interpretation of this statute is controversial and the operation of s 62 is routinely excluded in property deals
• in Wright v Macadam, s 62 operated in a situation where land had previously been divided. This requirement of previous diversity of occupation was echoed in Sovmots Investments v SoS for Environment but in more recent cases such as P&S Platt v Crouch and Wood v Waddington has been held not to be necessary.

Question 54

Implied acquisition under s 62 LPA 1925 - P&S Platt v Crouch

Answer 54

FACTS: Crouch family owned a hotel on a river bank, and an island midstream. The family and hotel guests used to moor boats on a jetty on the island. The use could be said to be a quasi-easement. Crouch family sold the hotel to Platt, but kept the island. The transfer deed did not contain any easement relating to the island.

HELD: s 62 also applied to quasi-easements, and implied them into the transfer or lease when the land was first divided, so any quasi-easement which was enjoyed with the hotel was implied into the transfer deed for the benefit of Platt when the hotel was sold.

Question 55

Application of implied acquisition under s 62

Answer 55

• Applies only to grants and not to reservations
• Applies in two situations:
  (1) When there is prior diversity of occupation - e.g. landlord and tenant situations like Wright v Macadam, so the easement is implied when the lease expires and the land is re-let to the same tenant, or to a different tenant.
  (2) It also applies to quasi-easement situations like Platt v Crouch to imply the easement into the first lease/transfer deed.
• The right must be continuous and apparent.
• There must be some physical evidence of the exercise of the right.
• s 62 only implies easements into deeds.
• so therefore it only implies legal easements.

Question 56

Enforceability of easements by dominant owner

Answer 56

• As between the original parties, a properly created easement is always enforceable by the dominant owner against the servient owner.
• If the dominant land changes hands, the benefit, which is part of the land, will pass with the transfer of the land (LPA 1925, s 205(ix) and s 62(1))
• It does not matter whether the easement is legal or equitable, or whether the land is unregistered or registered; the benefit will pass with the dominant land, enabling the dominant owner to enforce it.

Question 57

Express legal easements: formalities

Answer 57

• Must be created by deed (LPA 1925, s 52)
• Must comply with the formalities in LP(MP)A 1989, s 1:
  (1) Must be clear it is intended to be a deed
  (2) Signed by the grantor and witnessed
  (3) Delivered/dated
• Where servient land is registered, the easement must be substantively registered at the Land Registry to be legal (LRA 2002, s 27(2)(d))
• The benefit of the easement is noted in the Property Register of the dominant land and the burden of the easement is noted in the Charges Register of the servient land
• If any formalities are not met, the easement may be recognised instead as an equitable easement.

Question 58

Express legal easements: enforceability against servient owner

Answer 58

• Registered land: a properly created express legal easement will always be enforceable against a new servient owner
• Unregistered land: a properly created express legal easement will be enforceable as ‘legal interests bind the world’ (Mercer v Liverpool, St Helen’s and South Lancashire Railway Co)
• However, since LRA 2002, on transfer of the servient land, the express legal easement will be an interest overriding the first registration of the servient land and will become noted on the Charges Register of the newly registered servient land (Sched 1 para 3, LRA 2002)

Question 59

Implied legal easements: enforceability against servient owner

Answer 59

• Registered land: an implied legal easement will be an overriding interest (LRA 2002, Sched 3 para 3) provided that:
  (1) the easement is within the actual knowledge of the new owner;
  (2) it is obvious on a reasonably careful inspection of the servient land;
  (3) it has been exercised within a year before the transfer of the servient land.
• Unregistered land: an implied legal easement is enforceable in exactly the same way as an express legal easement over unregistered land.

Question 60

Express equitable easements: formalities

Answer 60

• Inherently equitable easements because they do not fall within LPA 1925 s 1(2)(a) are much less formally created; minimum formalities are in LPA 1925, s 53(1)(a): the easement must be made in writing and must be signed by the grantor.
• No substantive registration is needed
• Easements which do fall within LPA 1925, s 1(2)(a) but have not been created correctly may be recognised in equity as estate contracts, and must comply with the formalities in LP(MP)A 1989, s 2: must be made in writing, must be signed by both parties, must include all expressly agreed terms, and no substantive registration is needed.

Question 61

Express equitable easements: enforceability in registered land

Answer 61

A properly created express equitable easement will always be enforceable against a new servient owner, but must be protected in order to be enforceable.

• a Notice must be entered in the Charges Register of the servient land (LRA 2002, s 32). If this is done, then the easement is binding on a new owner of the servient land (LRA 2002, s 29(2)). If this is not done, the easement is not binding on a purchaser for valuable consideration (LRA 2002, s 29(1))
• A volunteer (i.e. someone who inherits/is gifted the land) will always be bound, whether the interest is protected or not (LRA 2002, s 28)

Question 62

Express equitable easements enforceability: a potential safety net for registered land

Answer 62

• For registered land, if an equitable easement is not protected by a Notice under LRA 2002, s 32, the easement is not binding on a purchaser for valuable consideration (LRA 2002, s 29(1)).
• There is however a safety net which may mean that the easement will be enforceable against a purchaser as an overriding interest.
• Equitable interests belonging to people in actual occupation of land to which the interest relates can be overriding interests; interests which are binding without registration (LRA 2002, Sched 3 para 2). It is unclear whether this applies to equitable easements.
• Chaudhary v Yavuz: The dominant owner claimed that a right to use a staircase was binding on the servient owner as an overriding interest under LRA 2002, Sched 3 para 2. The court said the use of the staircase was too intermittent to amount to ‘actual occupation’, but they refused to rule out the possibility other types of easement could amount to actual occupation, making them binding as an overriding interest. It is possible some parking/storage rights could do.

Question 63

Express equitable easements: enforceability in unregistered land

Answer 63

• As with registered land, properly created express equitable easements must be protected in order to be enforceable against a new servient owner.
• To be protected, a Class D(iii) Land Charge must be entered in the Land Charges Register (LCA, s 2(5)(iii)).
• This makes the easement binding on a new owner of the servient land (LPA 1925, s 198)
• If this is not done, the easement is not binding on a purchaser for money or money’s worth of a legal estate in the servient land (LCA 1972, s 4(6)).
• A volunteer will always be bound.

Question 64

Implied equitable easements: enforceability in registered and unregistered land

Answer 64

• The method for protection and rules on enforceability are exactly the same as for express equitable easements.
• The problem is that if someone has the benefit of an implied equitable easement, it is highly unlikely they would ever consider that they have to protect their interest.
• An implied equitable easement is therefore very vulnerable to being defeated when the servient land is sold.

Question 65

Remedies available for enforcement of an easement

Answer 65

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

Question 66

Five methods by which an easement can be extinguished

Answer 66

(1) Unification of tenements
(2) Express release
(3) Implied release or estoppel
(4) Obsolescence
(5) Excessive user

Question 67

Extinguishment of easements - (1) Unification of tenements

Answer 67

• Re Ellenborough Park: for an easement to exist, there must be a dominant and servient tenement, and those tenements must be in separate ownership (London and Blenheim Estates v Ladbroke Retail Parks Ltd)
• If the dominant and servient tenements are not unified in one ownership, then the easement is extinguished and will simply be a quasi-easement

Question 68

Extinguishment of easements - (2) Express release

Answer 68

• If the dominant tenement owner deliberately releases the servient land from the burden
• Usually done by deed, and usually involves some form of payment from servient owner to dominant owner
• Once the deed has been executed, an application will be made to the Land Registry to remove all reference to the easement from the registers of title of both the dominant and servient land

Question 69

Extinguishment of easements - (3) Implied release or estoppel

Answer 69

• Where there is abandonment of the easement, and an intention to release the servient land from the easement. It is difficult to show implied release because mere non-use is not enough.
• Benn v Hardinge: a right of way not used for 100 years held not to be abandoned an d use could be resumed
• Williams v Sandy Lane: a right of way had not been used for 30 years. The route had become overgrown, an earth bank and fencing had been put in the way. However, as it was not impassable, it was held not to be abandoned.
• Non-use must be accompanied with some act which is adverse to the enjoyment or the right and which evidences an intention to abandon it. ‘A fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else’ (Tehidy Minerals Ltd v Norman)
• Moore v Rawson: a rare example of such intention; a building which enjoyed the benefit of a right to light was demolished and replaced by a windowless building which could not possibly benefit from a right to light.

Question 70

Extinguishment by estoppel

Answer 70

Lester v Woodgate
FACTS: The dominant land owner had a right of way along a footpath across servient land. The path was obstructed when the servient owner extended a parking area across the route. The dominant owner did not object to the obstruction at the time or for many years afterwards. They only objected when he later wished to develop the dominant land.
HELD: As the dominant owner had failed to object to the obstruction, he had actually acquiesced to it. The court said it would be unconscionable in the circumstances for the dominant owner to rely on the legal right to use the easement and it was deemed to be extinguished.

Question 71

Extinguishment of easements - (4) Obsolescence

Answer 71

• It is possible for an easement to become obsolete as use of land changes over time.
• LPA 1925 s 84(1)(a) - a servient owner may apply to the Lands Chamber of the Upper Tribunal for the discharge of a freehold covenant on the basis that it has become obsolete
• No such procedure exists for the extinguishment of obsolete easements, and it is left to the courts to determine matters on a case by case basis
• Huckvale v Aegean Hotels Ltd: CoA conceded it is possible for an easement to be obsolete. The court would require clear evidence that there is no practical possibility of the easement ever again benefitting the dominant land as originally contemplated.

Question 72

Extinguishment of easements - (5) Excessive use

Answer 72

• If the dominant land owner exceeds the extent of the easement, the servient owner can, in exceptional cases, apply for an injunction and damages, or in extreme cases, for the easement to be extinguished.
• It must be shown that there has been a radical change in the character of the use, which has substantially increased the burden on the servient land.
• Jelbert v Davies: an easement was granted by Davies for Jelbert to access his farm ‘at all times and for all purposes’, although at the time it was only used for agricultural purposes. Jelbert created a caravan site for 200 caravans. Davies argued this represented excessive use. CoA held Jelbert could use the right of way for caravans but not so as to cause nuisance or substantially interfere with Davies’ rights as a servient owner.

Question 73

Extinguishment of easements - (5) Excessive use: McAdams Homes Ltd v Robinson

Answer 73

FACTS: McAdams bought a plot of land on which stood a derelict bakery. The land had planning permission for two houses, and the bakery had the benefit of an implied easement of drainage. McAdams intended that the two houses would use the easement of drainage, but Robinson blocked the drain, fearing they would not cope with the increased use.
ISSUE: whether an easement which had been implied for one purpose could be used where there had been a change in use of the dominant land
HELD: two questions to be asked -
(1) Did the new use of the dominant land represent a ‘radical change in the character or identity’ of it? If so, that would need to be more than an increase in intensity of use
(2) Would the change in character lead to a ‘substantial increase’ in the burden on the servient land?
In this case, the use of the land had changed from commercial to residential. The use of the drainage by two houses was excessive and represented a substantial increase in the burden.