Easements

Question 1

What is an easement

Answer 1

Easements are limited rights the one landowner may enjoy over the land of a neighbour.

An easement must involve two separate pieces of land.

An easement confers a benefit on the dominant tenement enabling the owner for the time of that land to use the easement.

An easement places a burden on the servient tenement, requiring the owner for the time being of that land to suffer the exercise of the easement.

The easement confers a benefit and burden on the land itself, so it may be enjoyed or suffered by any subsequent owner of the dominant or servient land.

It is a proprietary interest in land so the benefit passes with a transfer of the dominant tenement etc.

Question 2

Essential characteristics of easement

Answer 2

1. There must be a dominant and servient tenement
2. There must be separation – i.e the dominant and servient tenement must not be owner and occupied by the same person
3. Alleged easement must benefit the dominant tenement
4. Alleged easement must be capable of forming the subject matter of a grant

Confirmed in Regency Villas

Question 3

There must be a dominant and servient tenement

Answer 3

This lies at the very heart of the nature of an easement. Easements are rights that exist for the benefit of one piece of land which are exercised over another. This means that there has to be a land that is benefited (dominant) and a land that is burdened (servient). The dominant and servient land must be identifiable at the time the easement is creation, the creation of easements for the benefit of land not yet identified is impossible. The need for a dominant and servient tenement limits the impact of easements because not everybody is able to enjoy rights over the servient land. It confines the ambit of easements to those rights that truly benefit other land – not to be confused with rights which confer merely personal advantages.

Question 4

There must be separation of the dominant and servient tenement

Answer 4

The creation and continued existence of an easement is dependent on the dominant and servient tenements being owner or occupied by different persons. An easement is essentially a right in another person’s land, for that reason they cannot be owner and occupied by the same person. Should the dominant and servient tenements come into ownership and occupation of the same person, any easement over the servient land will be extinguished. Where the dominant and servient tenements come into the same occupation but not also the same ownership, the easement is suspended for the duration of the common occupation and may be revived thereafter.

Question 5

The alleged easement must benefit the dominant tenement (Cases)

Answer 5

Bailey v Stephens
Hill v Tupper
Wong

Question 6

The easements must benefit the dominant tenement

Answer 6

This restricts easements to those rights that increase the utility of the land and not merely those that benefit the person who currently owns or occupies the land. Regency Villas – whether the use accommodates the dominant tenement so that it might be an easement is essentially a question of fact in the context in which the use occurs. In the case of Regency, the court confirmed the existence of an easement for purely recreational use because the only reason the claimants had purchased the dominant land was in order to use those facilities

Question 7

Indications of what might be required for the easement to benefit the dominant tenement

Answer 7

1. The servient tenement must be sufficiently near to the dominant tenement to be able to confer a benefit on it. Need not be adjacent but must be proximate. Bailey v Stephens, Byles J found no easement over land in Kent for the benefit of land in Northumberland
2. The alleged right must not confer a purely personal advantage or benefit on the owner of the dominant tenement. Necessary but sometimes elusive as to benefit the land necessarily benefits the person occupying it.
3. Easements cannot provide benefit to the public at large.
4. Easement does not have to be necessary, just beneficial.

Question 8

Hill v Tupper

Answer 8

The owner of a canal granted the Hill the right to use pleasure boats on the canal for profit. Tupper also occasionally allowed customers to use boats on the canal for a profit. Hill wished to stop Tupper from doing so. He sued Tupper, arguing that his lease gave him an easement over the use of the canal. However, no proprietary right was held. The benefit of an easement must be for the land. This was held to be a personal advantage, not a right attached to the land. The use did not enhance the utility of the land; it enhanced the utility of the claimants business

Question 9

Wong

Answer 9

Wong, the tenant of the property had converted it into a restaurant. Three cellars were let to control and eliminate smells caused by the restaurant. Beaumont had complained about the smell and inspection determined ducts should be installed as part of a proper ventilation system. A duct was required to be fitted to the outside wall of the landlord’s property. The landlord refused to grant access to Wong to install the vent. There was a requirement that the vent would need to be installed. Court found an easement can be implied where the purpose of the lease cannot be carried out without it. The landlord consented to the use of the premise as a restaurant and therefore Wong established an easement of necessity. Wong was entitled to gain access to the property for the purposes of constructing, maintaining and repairing the ventilation system.

Question 10

Alleged easement must be capable of forming the subject matter of a grant

Answer 10

This is a broad criterion and allows the court to exercise discretion in deciding whether any use is capable of being an easement. All easements lie in grant as no right can exist as an easement unless it could have been granted by deed. The rule has these effects:
1. Easement cannot exist unless capable grantor. Somebody legally competent to create an easement.
2. Easement cannot exist unless capable grantee: somebody whose favour an easement may be legally granted
3. All rights forming subject matter must be sufficiently certain. Right must be capable of clear description and precise definition so that the servient owner and any purchaser may know the extent of the obligation imposed by easement. Coventry v Lawrence implies this should not be applied too rigidly.
4. For a new use to be capable of easement it must be within the general nature of rights that the law recognises as easements. For example unlikely the court will recognise new easements that require the servient tenement to spend money.

Question 11

Legal Easement

Answer 11

An easement can qualify as a legal interest only if it is held as an adjunct to a fee simple absolute in possession or as an adjunct to a term of years (s1 LPA) This means an easement is only capable of being a legal interest if it is attached to a dominant tenement that is held under a freehold or leasehold estate. Secondly, only legal if created by statute, deed or registered disposition or prescription. All easement created by other means must be equitable.

Under LRA 2002, an easement expressly granted out of a registered estate must be entered on the title of the servient land in order to take effect as a legal interes.t It must be substantively registered. Failure to do so renders the easement equitable.

Question 12

Equitable Easement

Answer 12

Easements held for periods less than a fee simple absolute in possession or term of years must be equitable. Not included in the definition of legal estates and interests found in s1 LPA 1925. Equitable easements more likely derive from the fact that the parties have failed to use the formalities appropriate for the creation of legal easements.

Question 13

Ways to create easements

Answer 13

Express: grant or reservation
Implied: necessity (grant or reservation)
Common intention
s62 LPA 1925

Question 14

Express Grant

Answer 14

An easement is expressly granted when the owner of the potential servient tenement grants an easement over their land to the owner of what will become the dominant tenement. This may occur in two scenarios:

1. Where the servient and dominant tenements are already in separate ownership
2. When the land is owned by a potential servient owner and they sell or lease a part of that land to another, the potential servient owner may include in that sale/lease a grant of an easement to the purchaser. The land remaining in the sellers possession becomes the servient tenement and the piece sold becomes the dominant tenement.

Question 15

Express Reservation

Answer 15

An easement is expressly reserved when the owner of the potential dominant tenement keeps an easement for the benefit of the land kept, operating over other land. Where land is owned by the potential dominant owner and they sell a piece of that land to another, the potential dominant owner may include in that sale a reservation of an easement for themselves. The land remaining with the seller becomes the dominant tenement and the piece sold becomes the servient tenement. The seller has reserved an easement for the benefit of the sellers own land. If the conveyance is by deed or registered disposition the easement is legal, if the transfer is by written contract it is equitable.

Question 16

Implied creation necessity

Answer 16

An easement may be impliedly granted, and occasionally impliedly reserved, because of necessity. The most common example is where the land sold or retained would be useless without the existence of an easement in its favour.

Question 17

Implied creation necessity grant

Answer 17

For reasons of necessity, easements arise most frequently in connection with way or light. If A sells part of his land to B, but it is impossible for B to gain access to his new land without walking over the land retained by A, an easement of way by necessity will be impliedly granted. Wong is an example in which an easement of ventilation by necessity was held to exist due to ventilation shaft. Real necessity must exist – in Re MRA Engineering, access to land by foot was possible so this prevented the implication of an alleged easement by necessity for vehicles.

Question 18

Implied creation necessity reservation

Answer 18

Reservation of easements by necessity are rare because seller has power to expressly reserve an easement as condition of a sale.

Question 19

Implied creation, common intention

Answer 19

Easements may be impliedly incorporated into sales of land in favour of the purchaser (grant) or in favour of the seller (reservation), if this is required to give effect to the common intention of the parties. The easement here does not have to be necessary for the use of the land, but the point is whether there was a common intention of the parties that the land granted should be used in some definite or particular manner and whether the grant is necessary to give effect to that intention. What is required is proof that the parties shared an intention as to a definite use of the land and that the easement is required in order to facilitate that use.

Question 20

Implied creation, s62 LPA 1925

Answer 20

Easements may only be granted to the purchaser by reason of s62, and they may not be reserved for the seller. S62 in simple terms, if a landowner has two or more plots of land and then conveys a legal estate in one of those plots to a purchaser, the purchaser will be granted by automatic action of s62, all those rights that were previously enjoyed with the land. It will convert into easements all of those rights that were previously enjoyed for. Requires conditions that must be fulfilled before s62 applied:

1. Only to sales or leases that are made by conveyance (grant or transfer of a legal estate). Sale or lease must be made by deed or registered disposition not written contract. Thus only creates legal easements
2. The operation s62 can be excluded by the conveyance to the purchaser, either expressly by clear words or whether the circumstances existing at the time of conveyance show the parties intended to exclude the section
3. Only those intrinsically capable of being easements may be impliedly created by virtue of s62. S62 can impliedly create only that which could be expressly created
4. The use must be taking place prior to the conveyance. S62 cannot create easements when the use occurred only after the dominant part was sold (Campbell v Banks).
5. Must be diversity of ownership

Question 21

Wheeldon v Burrows

Answer 21

The rule provides that, where a person transfers part of his or her land to another, the transfer impliedly includes the grant of all uses in the nature of easements that the seller enjoyed and used prior to the transfer for the benefit of the part transferred, provided those rights are continuous and apparent and necessary for the reasonable enjoyment of the part transferred.

On a disposition of part of a property, quasi easements used by the seller may be transformed into easements in favour of the buyer. A quasi-easement is when a landowner uses one part of his or her land for the convenience or other advantage of another part, provided that that use could have been an easement if the two areas were in different ownership.

Question 22

Conditions of Wheeldon v Burrows

Answer 22

1. The rule can be expressly excluded, as where a seller stipulates that the only easement granted to the purchaser are those expressly provided for in the sale or lease. As per Millman, the exclusion of the rule must be clear and the express grant of a lesser easement is not taken as equivalent to the exclusion of the implied grant of a wider easement.
2. Only those uses capable of being easements within Re Ellenborough criteria may become easements under the operation of Wheeldon.
3. The alleged use must have been occurring prior to the sale or lease – failure to establish the use was taking place is fatal. In Alford v Hannaford, the claimant failed under Wheeldon as she adduced no evidence of her use of the track over which she claimed a right of way
4. The rule applies to those quasi-easements that are used by the owner of the whole land for the benefit of the part sold before the lease or sale of the alleged dominant part
5. Qausi-easement must have been continuous and apparent and necessary for the reasonable enjoyment of the part granted

Question 23

Prescription (general)

Answer 23

Easements can be generated via prescription. Prescription occurs when the owner of what will be the dominant tenement establishes long use over what will be the servient land. If the use is capable of being an easement, the long use can mature into an easement proper.

All easements created in this fashion will be legal. The period for which the use must be established may vary from case to case, depending on the method of prescription used, but the essential point is that easements generated by prescription are easements created through the actual use of the potential servient land for the right that is later claimed. Unlike the law of adverse possession, the owner of the dominant tenement is taken to have acquired the easement through the acquiescence of the servient owner. Creates a new right for the dominant tenement owner, does not extinguish the rights of the owner on whose land the long use occurs.

Question 24

Three routes to prescription

Answer 24

They are common law prescription, common law prescription under rules of ‘lost modern grant’ and prescription under the Prescription Act 1832. All three follow the same common thread, that long use presumes a grant of the easement in favour of the dominant tenement.

Question 25

Three requirements of prescription

Answer 25

Lie in fee simple only
Must be in character of an easement
Use must be as of right so as to presume the grant

Question 26

Easements lie in fee simple only (Prescription)

Answer 26

Origin of prescriptive easements is that they are presumed to lie in grant. This means they are presumed to have arisen by grant from the fee simple owner of the servient tenement in absolute possession to the fee simple owner of the dominant tenement in absolute possession

Consequently, always legal and always attach to fee simple in absolute possession. There can be no easement by prescription in favour or against leaseholder or an estate that exists in equity only.

Question 27

Must be in character of an easement (prescription)

Answer 27

No easement by prescription can arise unless the use itself satisfies the inherent characteristics of an easement explained in Re Ellenborough. Something cannot presumed to be granted if it could not be expressly granted

Question 28

The use must be as of right so as to presume the grant

Answer 28

Long use must be as of right. The potential dominant tenement owners use the potential servient tenement owners land must be in the character of a use as of right and not be explicable for any other reasons

Question 29

Case for as of right

Answer 29

Odley v Barber - a claim to a prescriptive right of way failed because the use of the track had been with permission of the alleged servient owner. The claimants had never sought permission but it had been given and they were aware of it hence their use was not as of right

Question 30

Requirements of as of right

Answer 30

Not secret
Not force
No consent

Question 31

Secret

Answer 31

No easement can be acquired by prescription unless it arises in circumstances in which a grant can be presumed. Consequently, a secret hidden use by the owner of the alleged dominant tenement is not sufficient because it demonstrates that no grant can be presumed. A grant presumes a degree of awareness on the part of the servient owner, albeit not positive permission

Question 32

Case for secret

Answer 32

London Graving Dock Co – use has been open, that is ‘of such character than an ordinary owner of land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of the use.’

Question 33

Force

Answer 33

No easement by prescription if the owner of the alleged dominant tenement must use force to accomplish the use. Shows that no grant can be presumed.

Question 34

Consent

Answer 34

Must have knowledge of the use but not consent. Evidence of consent will bar prescriptive claim (Hill v Rosser)

Question 35

Methods of prescription

Answer 35

Prescriptions at common law
Prescription at common law: lost modern grant
Prescription Act 1832

Question 36

Prescription at common law

Answer 36

At common law, long use could mature into an easement if it can be shown to have occurred since before legal memory. This is fixed at the year 1189. Became accepted that use for 20 years raised a presumption that use commenced before 1189. The ease with which an alleged servient owner can defeat the 20-year presumption ensures this form is hardly ever successful

Question 37

Lost modern grant

Answer 37

The law assumes that 20 years’ use of the right is conclusive evidence of such a grant being made by the servient owner. The grant is modern because it is assumed to have been made some time after 1189, and lost because it cannot now be produced. 20 years continuous use by the owner of the dominant tenement is sufficient to establish and easement by prescription (Dalton v Angus).

Question 38

Prescription Act 1832

Answer 38

Intended to bolster the common law, supplementing it where necessary. Divides easements into easements and easements of light. Statute introduced two periods for prescription 20 years and 40 years. 20 years prevents the servient owner resisting prescriptive claim. 40 years gives rise to an easement even if the use was enjoyed with oral permission of the owner. Use must be continuous as of right and enjoyed for the requisite period immediately prior to the proceedings to which the claimant of the right is a party.

Question 39

Reform of prescription

Answer 39

Law Commission in consultation paper concerning easements provided some reform. Particularly in relation to prescription. The arguments in favour of retention of prescription are that prescription has proved invaluable over centuries as a way of regularising long use, bringing the legal position in line with practical reality. It is valued as a way of ensuring the continuation of facilities that are essential for the use and marketability of land. However, the other side of the coin is that prescription penalises neighbourliness and generosity. A landowner who has made no objection to a neighbours walking across their land may regard it as very unfair if that tolerance eventually lease to the land being burdened with a legal easement.

May also give rise to practical problems. As there is no express grant involved, it is unlikely that there will be documentary evidence of the existence of an easement acquired by prescription. The prescription period may have been completed in the distant past, and there may be no recent evidence of enjoyment of the right, so that even the most careful purchasers can be taken by surprise. The lack of written form or evidence makes it more difficult to determine the precise nature and extent of an easement acquired by prescription. Especially as easements that had an overriding status before 2003 will always retain that status.

Co-existence of three methods of prescription is major defect in the law. Buckley LJ said the current position is anomalous and undesirable, for it results in much unnecessary complication and confusion. Hopes for Legislature to effect a long-overdue simplification in this branch of the law. Law Commission recommend that the current law of prescription should be abolished and replaced with a new statutory scheme for the prescriptive acquisition of easements.

Question 40

Prescription Act

Answer 40

s3. Claimt to the use of light enjoyed for 20 years

When the access and use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.

Question 41

Who said what about necessary easements

Answer 41

Claims are only successful where the land is absolutely inaccessible or useless without the easement (London Garving Dock). A right of way over land will not be deemed necessary where it can be accessed by water (Manjang)

Question 42

When easements implied under Wheeldon v Burrows

Answer 42

When they are:

• Continuous and apparent
• Necessary for the reasonable enjoyment of the property granted
• Used at the time of the grant by the common owner for the benefit of the part granted

Question 43

Law Commission on reform of easements

Answer 43

With implied easements, the problem is complexity. There are at lease three common law methods, and also section 62. Take the view that a single statutory test for implication is required to replace the existing group of methods. Not to be rid of as it is a good fall-back position.

Found that a test of what is necessary for the reasonable use for land attracted most support. Propose and objective test based upon factual details.

Question 44

Difference between s62 and Wheeldon

Answer 44

These overlap to some extent because both can transform into an easement a quasi-easement. The quasi-easement was an advantage enjoyed with the property. While section 62 operated only where there is a conveyance, Wheeldon v Burrows will operate where there is only a contract, or where the quasi-easement was being enjoyed at the time of contract but not of the conveyance.

Question 45

Reform s62

Answer 45

Trap for the unwary and uncertain in its effect and in the extent to which it overlaps with Wheeldon v Burrows. It may prevent important rights being lost but also may equally preserve unimportant arrangement, converting friendly permission into a valuable property right. Recommend s62 should no longer operate to transform precarious benefits into legal easements or profits on a conveyance of land.