Easements: Overview

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• easement: incorporeal hereditament / land under s.205(1)(ix) LPA 1925
• easement: right which makes use of person's land / more convenient, accommodating or beneficial / right enjoyed over someone else's land also imposes burden / proprietary rights: may pass with ownership land
• neighbours may grant licence / permitting temporary access / may be revoked / not pass with ownership

Characteristics of an easement

• 1 dominant & servient tenement: one parcel of land benefitted & other burdened / 2 easement must accommodate dominant tenement / 3 dominant & servient owners must be different people / 4 right must be capable of forming subject matter of a grant Re Ellenborough Park

First characteristic: need for dominant & servient tenement

• dominant tenement: land benefitting from easement / servient tenement: land subject to easement

Second characteristic: accommodate or benefit dominant tenement

• right enjoyed by dominant tenement / sufficiently connected with that land
• insufficient: right enhanced value of dominant tenement / benefit: connected with normal enjoyment of property (question of fact) Re Ellenborough Park
• A right of way over land in Northumberland cannot accommodate land in Kent Bailey v Stephens

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Easements: Overview

[Flash Card 2 of 6]

Third characteristic: not owned & occupied by same person

• dominant & servient tenements must not be owned & occupied by the same person
• possible 1 person own estate in both dominant & servient tenement: L grants lease of part of property T / L owns freehold reversion (each concurrently holds an estate in the land comprised in lease)

Fourth characteristic: capable of forming grant

• capable being granted by deed / capable grantor (person with power to grant right) / capable grantee (person capable of receiving right)
• right not be too vague or wide / & not deprive servient owner too many rights Re Ellenborough Park
• right to a view cannot be protected by easement / imposed burden on large & indefinite area / can: easement of light, air or support / different more precisely defined / & acquired if enjoyed for long period (by prescription) Dalton v Angus
• no easement for TV / too high burden on builder / large area not limited to possible interference immediate neighbourhood / rely on planning permission Hunter v Canary Wharf
• limitations extent servient owner excluded from using land / no valid easement: no limit number of vehicles or period of time each could be stored / effect of excluding Copeland v Greenhalf
• exclusion question of degree / not easement: effect leave servient owner without any reasonable use of his land London & Blenheim Estates v Ladbroke Retail Parks
• exclusion servient owner / greater or lesser degree common feature of easements / only rejected if: extent of ouster so great as to be incompatible with an easement Miller v Emcer
• positive easement : gives dominant owner right to do something on servient land (right of way) / negative easement : gives dominant owner right to prevent servient owner doing something on servient land (right to light) Phipps v Pears

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Easements: Overview

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Acquisition: by express grant or reservation

• LPA 1925 s.1(2)(a) : easement capable of being legal interest / only legal if: duration equivalent to estate in fee simple absolute in possession (without time limit) or term of years absolute (for limited period)
• to create legal easement owner must: grant permanent right (equivalent to estate in fee simple absolute) / or grant right for fixed period (equivalent of term of years absolute)
• easements may be equitable interest: if uncertain duration or created by incorrect formalities (defect of form)
• deed required to create legal easement / legal interest in land must be by deed LPA 1925 s.52(1)
• if person selling part of land / may reserve certain rights in their favour (reserving an easement)
• to create legal easement over registered land: must comply with registered conveyancing rules / LRA 2002 s.27: express grant of legal easement requires registration on Property Register / to bind successive owners of servient land
• if legal easement not registered: pending registration equitable / will not bind buyer of servient land
• legal easement over registered land right must be: for an estate equivalent to a fee simple absolute in possession or a term of years absolute / granted by deed / completed by registration

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Easements: Overview

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Acquisition: by implied grant or reservation on sale of part

• after sale of part of his land / seller exercise right over land sold to buyer / easements: of necessity / implied due to common intention of buyer & seller at time of sale
• after purchase of part of land / buyer exercise over land retained by seller / easements: of necessity / implied due to common intention of buyer & seller at time of sale / under Wheeldon v Burrows / under s.62 LPA 1925
• implied easement of necessity / buyer implied easement over retained land of seller / if right was: continuous / apparent / necessary for reasonable enjoyment of the land / used as quasi easement by seller at time of sale Wong v Beaumont Property Trust
• continuous & apparent: requires feature on servient land / apparent on inspection / feature degree of permanence (drains or path) Ward v Kirkland

Acquisition: under s.62 Law of Property Act 1925

• LPA 1925 s.62: implies general list of words into conveyance of land / including buildings, fences, hedges / provides for automatic passing of rights of permanent nature (easements) in transfer of land
• T (tenant of part of property) mere licence to use coal shed / grant of new tenancy to T (transfer of land) / s.62 LPA 1925 words implied / right to use coal shed capable of being an easement / implied inclusion in deed transformed licence into legal easement Wright v Macadam
• new easement created under s.62 LPA 1925 : on sale of part of freehold or legal lease of part / if prior to sale of part: dominant land enjoyed benefit of licence or permission capable of being easement / & generally diversity of occupation at time of sale
• s.62 LPA 1925 capable converting privileges allowed under initial part sale of land into easements / no requirement: continuous & apparent or necessary for reasonable enjoyment of the part Goldberg v Edwards

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Easements: Overview

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Acquisition: by prescription (common law)

• easement acquired by prescription: without express or implied grant & no need for sale of part
• easement by prescription / person claiming right must be user as of right / satisfy 3 requirements: 1 without force (no objection raised by servient owner) / 2 without secrecy (possible for servient owner to discover & user exercised openly) / 3 without permission / servient owner must act prevent easement acquired by prescription Mills v Silver
• user as of right / also satisfy 2 more common law conditions: fee simple owner against fee simple owner / use must be continuous for requisite period of time
• at common law: right must be enjoyed for time immemorial (since 1189) / overcome difficulties / doctrine of lost modern grant: if exercised for more than 20 yrs / right must have originated by grant & deed containing grant lost

Acquisition: by prescription (statutory)

• Prescription Act 1832 s.2: common law claim to easement by prescription / prevented from being defeated / if easement has been enjoyed without interruption for 20 yrs / right enjoyed for 40yrs: absolute & indefeasible unless shown enjoyment depends on express written consent
• s.4: requires 20 or 40 yr periods / immediate before action / any interruption to right is ignored unless person claiming right allows it continue once aware of interruption & person responsible for it
• three methods of easement by prescription: common law (user as of right from time immemorial ) / doctrine of lost modern grants: enjoyed right for more than 20 yrs / PA 1832: use for at least 20 yrs immediately prior to court action
• PA 1832 s.3: right to light / enjoyed without interruption for 20 yrs & without written consent becomes absolute & indefeasible / user does not have to be as of right (without force, secrecy & permission)
• entitlement to: sufficient light / on facts / inc extent burden City of London Brewery v Tennant
• easements acquired by prescription: implied into deed & legal easements

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Easements: Overview

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Protection of easements

• expressly created legal easement: must be completed by registration ( s.27(2)(d) LRA 2002) to become legal easement / if not buyer will take free ( s.29 LRA 2002 ) / Sch.3 para.3 LRA 2002 not protect expressly created legal easement which has not been registered
• implied easement of necessity arising on sale part: not legal easement & not express grant / no need to register / overriding interest under Sch.3 para.3 LRA 2002 if: obvious to buyer on reasonably careful inspection of land / or buyer knew of it / or user can prove exercised right in yr prior to sale
• easement by prescription: overriding interest under Sch.3 para.3 LRA 2002

Extinguishment of easements

• easement may be expressly released by deed / or if dominant land owner purchases servient land
• abandoned: act indicating right abandoned / cannot revive Moore v Rawson

Reform

• Law Commission / Making Land Work (2011)
• facilitate creation of rights to park vehicles / without giving right to exclusive possession
• sale of part implied easements: replaced by statutory implied easement / if necessary for reasonable use of land / at time of transaction
• remove creation of easements under s.62 LPA 1925 / single statutory scheme to replace prescription methods / presumption of abandonment after 20 yrs non-use of easement

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