easements and profits

Question 1

WHAT IS AN EASEMENT?

Answer 1

An easement is a right which benefts one piece of land over a diferent piece of land.

Question 2

Servient vs Dominant Tenement

Answer 2

The land over which the right is enjoyed and which takes the burden is called the ‘servient tenement’ and the land beneft-ting is the ‘dominant tenement’.

Question 3

4

The Essential Characteristics of Easements

Answer 3

The essential characteristics of an easement were set out in a famous case called Re Ellenborough Park and are as follows:
*There must be both a dominant and a servient tenement
*The easement must confer** a beneft on the dominant tenement**—a mere personal right for Tom to hunt on his friend’s property, for example, will not constitute an ease-ment because it does not beneft land (it is not some-thing that any owner of the land would beneft from).
*The dominant tenement and the servient tenement must be in separate ownership.
*The right must be of a type recognised as capable of being an easement and it must be described sufciently to identify it.

Exam Tip
When considering whether a right is capable of being an easement, apply the test: does the right make the dominant tenement a more valuable or convenient landholding? If it is merely a personal right, it will not be an easement.

Question 4

WHAT IS A PROFITÀ PRENDRE?

Answer 4

a proft à prendre is the right to take something from land belonging to another.
Examples are the right to take minerals, timber, and fish. They are treated very similarly to easements, with the important exception that they can exist appurtenant (attached to land) or ‘in gross’—not attached to land and transferable in its own right. For example, someone beneftting from a right in gross to fish would be able to transfer this right to another without there being any associated transfer of the land involved.

Question 5

LEGAL REQUIREMENTS TO CREATE A LEGAL EASEMENT OR PROFIT

Answer 5

1. Must Be Created by Deed
   To be a legal easement or proft, the right must be for the duration of a freehold or a leasehold and must be created by deed.
2. Must Be Indefnite or a Fixed Period
   EXAMPLE
   An easement granted for ‘20 years’ or ‘indefnitely’ would be legal, but an easement granted ‘for life’ would not be (because a life is not a fxed period).

Question 6

When No Deed Is Used

Answer 6

If no deed is used, the grant is ineffective in law. However, if the grant is:
*In a writing that
*Is signed by both parties, and
*Contains all the agreed terms,
equity may recognise that an enforceable contract to grant an easement or proft has been created.

Question 7

4

Easements can be created in the following ways:

Answer 7

*By express grant or reservation;
*By implied grant or reservation;
*By prescription; or
*By statute (but this is rare).

Question 8

3

By express grant or reservation;

Answer 8

1. If a landowner is selling part of the land that they own, it is necessary to consider whether the land being sold requires any rights over the land being retained. If so, the landowner will grant rights to benefit the land being sold. Conversely, if the land being retained needs rights over the land being sold of, the landowner will** reserve** rights over the land being sold for the beneft of the retained land. Usually these rights will
   be** stated in the transfer**. Thus, they are ‘express’ rights.
2. If rights are conferred in a separate deed of easement be-tween two or more landowners, these will also be rights that have been created expressly.
3. By statute, a conveyance of land includes, among other things, all existing liberties, privileges, easements, rights, and advantages **appertaining to the land. **Thus, easements and profts appurtenant should pass even if they are not specifcally mentioned in the transfer document.

Question 9

5

Implied Grant or Reservation

Answer 9

a.Easements by Necessity
b.Common Intention Easements
c.Ancillary Easements
d.Easements Implied by Existing Use
e.Implied Grant by Statute

Question 10

what is An implied easement

Answer 10

An implied easement is one which comes into existence when there is a sale of all or part of a landholding and the parties to the transaction h**ave not expressly created **the required easements in the conveyancing documentation.

Question 11

2

Easements by Necessity

Answer 11

1. Typically, an easement by necessity will be implied in the case of a piece of land that is ‘landlocked’, that is, where an owner sells land to another that has no access to a road except over land retained by the owner.
2. The only easements that can be implied by necessity are therefore** rights of way**, and only when there is no other means of accessing the land.

Question 12

2

Common Intention Easements

Answer 12

Easements implied by common intention are easements implied to give efect to what both parties intended. For an easement to arise under this method:
*There must be a common intention on how the land was to be used; and
*It must be impossible to give effect to the common inten-tion without the easement.

Question 13

Ancillary Easements

Answer 13

An ancillary easement arises from the realities of the circum-stances—an easement that allows for the fulflment of some other interest. For example, the grant of a right to take water from a spring implies an ancillary right of way to that spring.

Question 14

3

Easements Implied by Existing Use

Answer 14

Easements implied by existing use apply where both the dominant and servient land were previously** held by one common owner**. On a sale of part of a landholding those easements will pass which:
*Are continuous (meaning, in regular use by the seller at the date of transfer) and apparent (meaning, obvious on reasonable inspection);
*Are necessary to the reasonable enjoyment (meaning, enhances the property in some way; does not mean ab-solute necessity) of the land acquired; and
*Had been, and were at the date of the conveyance, used by the seller for the beneft of the land now being sold.
This is also known as the rule in Wheeldon v Burrows.

Question 15

2

Implied Grant by Statute

Answer 15

1. Statute operates only to** grant necessary rights** for the benefit of the** land being sold **of; it does not apply to any reservation of rights needed by the seller. It implies easements into a conveyance, so applies only when there is a transfer deed into which the easement can be implied.
2. Limitations
   (1) The right must be** continuous (in regular use) and apparent** (obvious on its reasonable inspection); and
   (2) The grant of easement by statute can be excluded by express wording in the conveyance.

Question 16

3

Will Implied Reservation of Easements Be
Recognised?

Answer 16

1. Generally, no easements will be implied in favour of the person granting the rights (either the seller on a sale of part of a landholding or the grantor in a deed of easement).
2. However, there are two exceptions: easements of necessity and** intended easements**
3. Note that implied easements can be either legal or equitable, depending on the document into which they are implied.
   Most commonly, they would be implied into a deed, in which case they would be legal. However, if they are implied into a contract for land, they would be equitable instead.

Question 17

Easements Created by Presumed Grant or
Prescription

Answer 17

The law will recognise the creation of a right as being lawfully granted even though there is** no written evidence** of it if the right has been exercised over a long period of time. This is known as a right arising by** ‘prescription’**, that is, by long use.

Question 18

2

Requirements
To obtain an easement by prescription, a party must show that they have:

Answer 18

*Used the beneft unchallenged for over 20 years; and
*Used the beneft ‘as of right’, that is, they did not ask for permission or make any payment for the use of the beneft.

Question 19

3

There are three alternative ways to acquire a right by prescription:

Answer 19

1. Prescription at Common Law
   A right is presumed to have a lawful origin if it has been used ‘from time immemorial’; effectively a rebuttable presumption of immemorial use from 20 years’ use as of right.
2. Prescription by‘Lost Modern Grant’
   This is essentially a fiction by the courts which recognis-es that if a claimant can show actual enjoyment for 20 years, the court is willing to pretend that there was once a grant that has now been lost.
3. Prescription by the Prescription Act 1832
   The statutory means of acquiring an easement is based on either 20 or 40 years’ use, and the provisions are complex. The Act distinguishes between easements of right and other types of easement.

Question 20

Nature of Easements by Prescription

Answer 20

1. Easements arising by common law prescription or the doc-trine of lost modern grant will be** legal interests**.
2. The pur-chaser of unregistered burdened land is bound by legal interests.
3. Following frst registration of the burdened land,
   most legal easements are overriding interests and so are capable of binding successive registered proprietors of the burdened land.

Question 21

3

Protection of Easements If the Title Is
Registered

Answer 21

1. The creation of an express legal easement over registered land is a disposition which must be registered at HMLR to take efect.
2. The beneft of the easement will appear as a
   notice on the property register of the dominant tenement. The burden of the easement will appear as a notice on the Charges Register of the servient tenement.
3. If the new easement or proft is not protected by registration, the requirements for its legal creation will not be satisfed and it will take efect in equity only (assuming the requirements of a contract for land are met).

Question 22

protection of easement

Answer 22

Question 23

Protection of Easements If the Title Is
Unregistered

Answer 23

If the title is unregistered, a legal easement or profit isenforceable against any buyer as legal rights bind thewhole world.
Equitable easements must be registered as a
D(iii) land charge to bind a buyer as registration constitutesnotice