Easements: Methods of Creation

Question 1

What are the three methods for creating an easement, and can you briefly outline each method?

Answer 1

1. Express Grant or Reservation: This method involves a clear agreement between neighbors where one party grants or reserves an easement over the other’s land, such as when selling a part of land but retaining certain rights over it. The easement must be clearly stated and follow correct legal procedures to be valid.
2. Implied Grant or Reservation: Easements can also be created without explicit documentation, inferred from the circumstances of a land sale. Implied easements arise from necessity, common intention of the parties, the rule in Wheeldon v Burrows, or under Section 62 of the Law of Property Act 1925, suggesting that certain rights are so inherent to the land’s use that they are assumed to be granted or reserved.
3. Prescription: An easement can be acquired through long-term use under the principle of prescription. This requires the use of the land in a manner that is continuous, open, and without the express permission of the landowner over a legally defined period, leading to the right being established by long-standing practice.

Question 2

How is an easement created through express grant or reservation?

Answer 2

An easement is created through express grant or reservation when the owners of two neighboring properties agree that one shall have specific rights over the land of the other.

Question 3

What are the procedural requirements for establishing an easement through express grant or reservation?

Answer 3

For an easement established through express grant or reservation to be legally binding, it must follow specific procedural requirements. These include a clear expression of intent to create the easement and adherence to legal formalities for documentation and registration.

Question 4

In what situations are express grants or reservations commonly used to create easements?

Answer 4

Express grants or reservations of easements commonly occur in two scenarios:

1. when a landowner sells part of their property but wishes to retain certain rights over the sold land, known as a reservation, and
2. easements can also be granted independently of any land sale. This flexibility allows landowners to structure the use of and access to their property in a manner that best suits their needs, ensuring the continued utility of both retained and sold parcels.

Question 5

What are the types of implied easements available to a seller after selling a part of their land?

Answer 5

After selling a part of their land, a seller can retain two types of implied easements over the land sold to the buyer:

1. Easements of strict necessity - rights essential for the reasonable use or access to the remaining land owned by the seller that cannot be otherwise achieved.
2. Easements implied due to the common intention of the buyer and seller at the time of the sale - rights that, while not explicitly documented, are inferred to have been mutually intended by both parties based on the circumstances and usage of the land at the time of sale.

Question 6

What rights do buyers have concerning implied easements over the land retained by the seller?

Answer 6

Buyers can exercise several types of implied easements over the land retained by the seller, including:

1. Easements of strict necessity - essential rights needed for the reasonable enjoyment of the purchased land.
2. Easements implied due to the common intention of the buyer and seller at the time of the sale - rights assumed to have been agreed upon by both parties, even if not formally documented.
3. Easements under the rule in Wheeldon v Burrows - rights that were apparent, continuous, and necessary for the reasonable enjoyment of the land being sold, used by the seller before the sale.
4. Easements under Section 62 of the Law of Property Act 1925 - rights that pass with the land automatically upon the conveyance of a property, assuming no contrary intention is expressed.

Question 7

What does Wong v Beaumont Property Trust Ltd reveal about the nature of implied easements in lease agreements?

Answer 7

Wong v Beaumont Property Trust Ltd reveals that implied easements can extend to necessary improvements for a property’s intended use, even if such needs weren’t anticipated at the lease’s inception.

Lord Denning MR’s observation that “It was not realised by the parties, at the time of the lease, that this duct would be necessary. But it was in fact necessary from the very beginning” underscores a critical aspect of easements: they can be implied to ensure the property’s functional use according to its intended purpose.

Question 8

What criteria did Thesiger LJ establish in Wheeldon v Burrows for a buyer to acquire an implied easement over a seller’s retained land?

Answer 8

In Wheeldon v Burrows, Thesiger LJ established that for a buyer to acquire an implied easement over a seller’s retained land, the right in question must be:-

1. Continuous,
2. Apparent,
3. Necessary for the reasonable enjoyment of the land, and
4. Being used as a ‘quasi easement’ by the seller at the time of sale.

This rule ensures that the buyer retains the practical use and benefits they presumed to accompany the land purchase.

Question 9

What principle underlies the criteria set out in Wheeldon v Burrows?

Answer 9

The underlying principle, as stated by Bowen LJ in Birmingham, Dudley & District Banking Co v Ross, is that a grantor cannot derogate from his grant, meaning they cannot offer a right with one hand and take away the means to enjoy that right with the other.

This principle emphasizes fairness and the preservation of intended land use post-transaction.

Question 10

Give the name and date of the case described below

A lessee, part of a development scheme by a corporation, constructed a building that later faced a potential loss of light due to new construction across the street. This raised the question of whether an implied right to light exists when the lease was granted under a development plan expected to undergo significant construction.

The court clarified that an easement of light, to be enforceable, must be under conditions that reasonably lead to an expectation of its continuance. This ruling highlights the nuanced application of the principle that while a grantor should not derogate from the grant, the rights themselves must be understood within the specific expectations and agreements made at the time of the grant, especially in a development context.

Answer 10

Birmingham, Dudley & District Banking Co v Ross (1888)

Question 11

Give the name and date of the case described below

The claimant owned a cottage built very close to the boundary of the defendant’s farm, requiring access to the farm for maintenance of the cottage walls. The claimant sought an easement to access the defendant’s farm for this purpose.

The Court of Appeal held that no easement was implied by grant under the rule in Wheeldon v Burrows but found an easement was implied by grant under section 62 of the Law of Property Act 1925. Ungoed-Thomas LJ clarified that positive easements not “continuous and apparent” do not fall within the Wheeldon v Burrows doctrine. The case explores the criteria for an easement to be implied by grant, emphasizing the need for a permanent feature on the servient land, visible upon inspection, for an easement to be “continuous and apparent.”

Answer 11

Ward v Kirkland [1967]

Question 12

What does section 62 of the Law of Property Act 1925 imply about conveyances of land?

Answer 12

Section 62 implies that a conveyance of land automatically includes all appurtenant buildings, fixtures, liberties, privileges, easements, and rights, whether the land has buildings or not, or even if it’s a conveyance of a manor.

Question 13

What conveyances does section 62 of the Law of Property Act 1925 apply to?

Answer 13

s 62 of the Law of Property Act 1925 applies to conveyances made after December 31, 1881, and only if a contrary intention isn’t expressed.

Question 14

What is the purpose behind section 62 of the Law of Property Act 1925 regarding conveyances?

Answer 14

The purpose of section 62 is to streamline conveyance processes by implying general words into the conveyance of land, making it unnecessary to explicitly state everything conveyed with the land.

This leads to shorter, simpler conveyance documents, easing the conveyance process for both parties and reducing the reliance on lengthy documents to ensure all rights and advantages are transferred.

Question 15

What are the three key requirements for an easement to be created under section 62 of the Law of Property Act 1925?

Answer 15

To create an easement under section 62, the conveyance must:-

1. Involve a portion of land (either freehold or leasehold),
2. The benefit of the right must have been enjoyed by the dominant land prior to the sale (even shortly before conveyance), and
3. there must be diversity of occupation at the time of the conveyance, although recent cases suggest this is not always essential.

Question 16

How did the case of Wright v Macadam interpret section 62 regarding the transformation of permissions into easements?

Answer 16

In Wright v Macadam, a license to use a coal shed was transformed into a legal easement upon the renewal of a tenancy, demonstrating that section 62 can convert permissions into easements during conveyance.

This case highlights the broad interpretation of s 62, where rights of a permanent nature and permissions can be automatically conveyed as easements.

Question 17

How essential is diversity of occupation for the creation of easements under s 62, and what cases have influenced this understanding?

Answer 17

Diversity of occupation was traditionally seen as essential for converting a license into an easement under s 62, as established in Payne v Inwood (1996).

However, the case of Wood v Waddington [2014] challenged this view, suggesting there’s no absolute rule requiring diversity of occupation for claiming a right of way under section 62. The case emphasizes looking at whether the right was enjoyed with the conveyed land and appeared to be a burden on the land retained.

Importantly, Broomfield v Williams (1897) introduces an exception, indicating that while diversity of occupation is necessary to convert a license into an easement, this is not essential for converting continuous and apparent quasi-easements.

Question 18

Summarise the key facts, decision, and implications of the Castagliola v English (1969) case related to s 62 of the Law of Property Act 1925.

Answer 18

In Castagliola v English, the court addressed the application of s 62 of the Law of Property Act 1925 in a scenario involving the use of a concourse in a shopping centre. The right to use this concourse had been exercised up until six months before the conveyance.

The case clarified that for s 62 to apply and create an easement, the right in question does not necessarily have to be in active use at the exact time of conveyance, provided it was utilized shortly before.

This case expanded the understanding of “enjoyed with the land” under s 62, indicating that rights exercised in close temporal proximity to the conveyance can still be deemed to be included in the conveyance, thus being capable of becoming easements.

Question 19

What is prescription, and how can it lead to the acquisition of an easement?

Answer 19

Prescription refers to the method of acquiring an easement without a formal grant, either express or implied, and it does not necessitate a sale of part.

It involves a situation where a landowner does not stop another’s continued and open use of their land for a sufficient period, leading to the acquisition of an easement.

This process is based on the concept of acquiescence by the landowner to the ongoing use of their property.

Question 20

What are the comprehensive methods of acquiring an easement by prescription, including statutory provisions?

Answer 20

Common Law Prescription: Requires a presumed right since time immemorial (1189), with courts accepting 20 years of ‘as of right’ use as presumptive evidence.

Doctrine of Lost Modern Grant: Assumes a now-lost deed granting the right if there has been 20 years of ‘as of right’ use.

Prescription Act 1832: Statutory method specifying:
- A 20-year uninterrupted use for non-light easements to prevent defeat by showing a post-1189 commencement, with a 40-year use making the claim absolute and indefeasible unless written consent is shown.
- A 20-year period for light easements, after which the right becomes absolute and indefeasible without the need for ‘as of right’ use, just uninterrupted use and without written consent.

Question 21

What are the common law conditions that must be satisfied for the use to qualify as an easement by prescription?

Answer 21

To qualify as an easement by prescription, certain common law conditions must be met:

1. User ‘as of right’: The use must be unchallenged (nec vi, without force), exercised openly (nec clam, without secrecy), and without the landowner’s permission (nec precario), indicating it is unauthorised but capable of being discovered and prevented.
2. Freeholders only:The use must be by a fee simple owner (or their tenant) against another fee simple owner’s land.
3. Continuous: The use must be continuous for the requisite period, establishing a longstanding pattern of use recognizable as an easement.

Question 22

In which case did Lindlay LJ’s lay out the test that the use of a path must be sufficient to inform a reasonable person owning the servient land that a continuous right of enjoyment is being asserted?

Answer 22

Hollins v Verney (1884)

Question 23

How does the presence of tenants affect the establishment of prescriptive easements, given the common law’s requirement for easements to be established between freehold owners?

Answer 23

Under common law, while prescriptive easements traditionally involve rights established between freehold owners, the role of tenants introduces important nuances:

Benefit to Dominant Land: Usage by a tenant on the dominant land is viewed as usage by the freeholder. Thus, a tenant exercising rights over servient land indirectly establishes easement rights on behalf of the landowner, allowing for the acquisition of easements even when the user is not the freeholder.

Burden on Servient Land: For the easement to be valid, the servient land, over which the right is exercised, must be owned by a freeholder. This criteria ensures that the easement is claimed against a stable, enduring ownership interest, reflecting the seriousness and permanence of easement rights.

Question 24

How do “tolerance” and “consent” differ in the context of prescriptive easements, and what role does continuous use play?

Answer 24

Consent negates ‘as of right’ use: Active permission from a landowner stops the establishment of a prescriptive easement since the use is not without permission.

Tolerance does not equal consent: Passive acceptance by a landowner (tolerance) does not prevent use from being considered ‘as of right’. Thus, a prescriptive easement can still be claimed even if the landowner tolerated the use out of neighborliness.

Continuous use is key: Use must be consistent and apparent enough to indicate a claim to the right, even if interrupted by natural conditions. Sufficient use, despite weather restrictions, can meet the requirement for continuous use in claiming a prescriptive easement.

Question 25

Explain the significance of "time immemorial" and the 20-year use period in the context of acquiring easements by prescription.

Answer 25

**Time Immemorial (1189):** In common law prescription, claiming a right by long use requires the right to have been granted and exercised since time immemorial, defined as the year 1189. Due to the challenge of establishing such a long history, courts presume a right exists with 20 years of uninterrupted 'as of right' use, assuming continuity since 1189. **20-Year Use:** Both the common law prescription and the Doctrine of Lost Modern Grant utilize a 20-year period of 'as of right' use as a critical criterion for the acquisition of an easement. Under the Doctrine of Lost Modern Grant, 20 years of use leads to the assumption of a now-lost deed that granted the right, circumventing the impracticality of proving a grant since time immemorial. This period is crucial for establishing a claim to an easement in both methods.

Question 26

How does the Prescription Act 1832 provide a statutory method for acquiring easements by prescription, and what are the key periods involved?

Answer 26

The Prescription Act 1832 introduces a statutory method for acquiring easements by prescription, providing a third way to claim an easement. **For non-light easements**, s 2 of the Act specifies a 20-year uninterrupted use as sufficient for a claim, which cannot be easily defeated by showing the use began after 1189, unlike common law prescription. A 40-year uninterrupted use makes the easement "absolute and indefeasible," unless there's express written consent for the use. **For easements of light**, only a 20-year period is specified, after which the easement becomes absolute and indefeasible if enjoyed without written consent. Unlike other easements, the user does not need to be 'as of right'; it only needs to be uninterrupted for 20 years before legal action and without written consent.

Question 27

How is the amount of light determined for an easement of light acquired by prescription under English law?

Answer 27

The amount of light for an easement acquired by prescription is determined by the courts, based on **"sufficient light according to the ordinary notions of mankind"** for the comfortable use and enjoyment or for the beneficial use and occupation of the building. This standard was established in cases like **Colls v Home & Colonial Stores Ltd [1904]** and **City of London Brewery Co v Tennant [1873]**. There is **no specific rule for the amount of light a window must receive**; each case is judged on its own facts, considering the extent of the burden on the servient land.

Question 28

Can rights to light be claimed through means other than statutory prescription?

Answer 28

Yes, rights to light can also be claimed using the **common law method** or the **doctrine of lost modern grant**. However, for both methods, all common law conditions must be met. These conditions include the use being **unchallenged, exercised openly without secrecy, and without permission**, establishing the user as 'as of right'.

Question 29

What were the Law Commission's recommendations regarding rights to light acquired by prescription?

Answer 29

In 2014, the Law Commission recommended making it **easier to prevent rights to light from being created by prescription**. It suggested giving power to the Lands Chamber of the Upper Tribunal to **discharge or modify obsolete or unused rights to light**. However, the Law Commission **did not recommend abolishing the ability to gain rights to light by prescription**.

Question 30

What are the qualifications introduced by Section 4 of the Prescription Act 1832 regarding the claim of easements by prescription?

Answer 30

Section 4 of the Prescription Act 1832 introduces two qualifications to Section 2 regarding easement claims: 1. The 20- and 40-year periods for claiming an easement must occur '**next before some suit or action**', meaning an easement right does not arise until a court action is brought, and the use must have been continuous right up to that court action. 2. Any **interruption** in the enjoyment of the right being claimed is **disregarded unless** the claimant allows the interruption to **continue for a year** after becoming aware of both the interruption and the responsible party. This provision addresses the handling of interruptions to the use claimed as part of the easement.

Question 31

# Give a brief summary of the facts, issues and decision in the below case Mills v Silver [1991]

Answer 31

**Facts**: A dispute over the right to use a farm track as access through Mills' land, previously used from 1950 to 1981, then resumed in 1985 by Silver. Mills contested Silver's use, claiming no right due to _intermittent use_ and arguing that _past toleration did not establish a right_. **Issue**: Can toleration of a pathway's use establish a prescriptive easement for Silver? **Held**: Appeal allowed for Silver, establishing a prescriptive easement. 1. **Mere toleration**by a landowner **does not equate to consent** and does not prevent the establishment of a prescriptive easement. 2. **Continuous use** for a period, despite breaks and without explicit permission, can establish a right of access as a prescriptive easement under the **doctrine of lost modern grant**

Question 32

How does a mistaken belief about the origin of a right of way impact a claim for a prescriptive easement under the doctrine of lost modern grant?

Answer 32

The **Bridle v Ruby [1989]** case illustrates that a prescriptive easement can still be established through long-term use, even if initiated under a mistaken belief regarding its legal origin. The court highlighted that the doctrine of lost modern grant operates as a **legal fiction**, meaning it does not require the actual existence of a historical grant. Therefore, a **user's mistaken belief that a formal right existed does not detract from the ability to claim an easement by prescription.** This underscores that the critical factor is the **uninterrupted use itself, not the user's understanding or the actuality of a grant**, reinforcing that the concept of a lost modern grant is designed to regularize longstanding de facto uses into recognized legal rights.

Question 33

What was the Prescription Act 1832's intention regarding common law methods of acquiring easements, and what resulted instead?

Answer 33

The Prescription Act 1832 aimed to **replace the two common law methods** of acquiring easements. However, it **didn’t abolish them**, leading to the coexistence of all three methods (Prescription Act, Common Law, and Lost Modern Grant). Claimants **typically argue all three methods** when seeking an easement.

Question 34

What are the requirements and differences for claiming non-light easements under the Prescription Act 1832?

Answer 34

Non-light easements under the Prescription Act can be claimed based on **20 or 40 years of use**. The **20-year claim requires adherence to Common Law Rules** (use without force, secrecy, or permission), while the **40-year claim is less stringent**, not requiring full compliance with these rules. **Written consent can defeat a 20-year claim**, but only written consent **at the start** or oral consent **during the use affects the 40-year claim**.

Question 35

When does an easement claimed under the Prescription Act 1832 come into existence, and how does this differ from common law and lost modern grant easements?

Answer 35

Easements under the Prescription Act come into existence **only when granted by a court**, differing from common law and lost modern grant easements, which **exist as soon as the requisite period of use has passed**. The court's role is pivotal in the Prescription Act, making its easements effective from the grant date, based on the right's use in the 20 or 40 years immediately before the court application.

Question 36

What constitutes an "interruption" under the Prescription Act 1832, and how does it affect the claim for an easement?

Answer 36

An "interruption" under the Prescription Act 1832 requires **positive prevention of the use for at least one year**, with the claimant being **aware of and submitting** to this interruption without objection. This condition means that any act preventing the use of a claimed right, if not contested for a year, can **disqualify a claim for an easement** based on 20 or 40 years of use. An example of failure is when a **neighbor builds a fence blocking a shortcut**, which the user does not contest for over a year, thus breaking the continuity of use and invalidating a claim for an easement.

Question 37

Contrast the impact of disuse due to non-use of land with physical prevention on a prescriptive easement claim under the Prescription Act 1832.

Answer 37

**Disuse** due to the land not being used (as in the case of an unoccupied farm) d**oes not constitute an "interruption"** under the Prescription Act 1832, **unlike physical prevention** (e.g., building a fence). Thus, a **break in use because the land was unoccupied does not prevent a successful easement claim**, emphasizing that interruptions must be active preventions acknowledged and submitted to by the claimant.

Question 38

How does the Prescription Act differ in its treatment of rights to light compared to other easements?

Answer 38

The Prescription Act simplifies the acquisition of rights to light by requ**iring only 20 years of uninterrupted use**, without the need for proving absence of force or secrecy. Only **written permission negates the claim**, and the status of the servient land's occupation (**tenant vs. freeholder) does not impede the acquisition** of a light easement.

Question 39

What lesson does Dance v Triplow [1992] teach about acquiring a right to light under the Prescription Act?

Answer 39

Dance v Triplow highlights the critical importance of prompt action against obstructions to a right to light. Mr. Dance's **failure to formally complain** about an extension that blocked his light for over a year **constituted an acceptance of the interruption**, leading to the loss of his claim under the Prescription Act. This case emphasizes that uninterrupted use for 20 years **must be actively preserved**, and any obstruction must be contested promptly to maintain a right to light.