Introduction

• easement is an incorporeal hereditament which falls within the definition of land under s.205(1)(ix) Law of Property Act 1925
• easement is a right which makes use of a person's land more convenient or accommodating or beneficial & as a right enjoyed over someone else's land it also imposes a burden
• easements are proprietary rights which may pass with ownership of land
• neighbours may grant licence permitting temporary access to their land but may be revoked & does not pass with ownership
• number of rights over land are neither licences or easements:
  statutory rights: utility companies' rights are not acquired in same way as easements but granted by Acts of Parliament
  public rights: public enjoy regardless of whether they own any land
  profit à prendre: right to take something capable of being owned from someone else's land without having to own the land that benefits from the right, known as right in gross (easement: cannot exist in gross as there must be land capable of deriving benefit from it & only confers mere privilege no profit)
  natural right: to have your land supported by that of your neighbour (easement: granted by another not natural right)
  restrictive covenant: agreement between landowners of neighbouring land , where one agrees to restrict his use of the land as an equitable interest (easement: capable of being legal or equitable)

Characteristics of an easement

• four characteristics which define an easement

  Re Ellenborough Park [1956] Ch 131

  • must be dominant & servient tenement: one parcel of land which is benefitted & other which is burdened
  • easement must accommodate the dominant tenement
  • dominant & servient owners must be different people
  • right over land cannot amount to an easement, unless capable of forming subject matter of a grant

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 must be sufficiently connected with that land

  Re Ellenborough Park [1956] Ch 131

  • benefit: insufficient to show that right enhanced the value of dominant tenement
  • benefit: person claiming right has to show it connected with normal enjoyment of the property (whether there is connection is question of fact)

  Bailey v Stephens (1862) 12 CB (NS) 91

  • Byles J: A right of way over land in Northumberland cannot accommodate land in Kent...

Third characteristic: not owned & occupied by same person

• dominant & servient tenements must not be owned and occupied by the same person
• possible for one person to own estate in both dominant & servient tenement: landlord grants lease of part of property tenant, landlord owns freehold reversion so each concurrently holds an estate in the land comprised in the lease (eg landlord owns block of flats & leases top floor flat to tenant, landlord grants easement to tenant to use stairs to reach flat for term not exceeding lease)

Fourth characteristic: capable of forming grant

• right must be capable of being granted by deed, so requires capable grantor (person with power to grant right) & capable grantee (person capable of receiving right)

  Re Ellenborough Park [1956] Ch 131

  • right must not be too vague or wide to be classed as easement
  • nature of right claimed must be sufficiently clear & not deprive owner of servient tenement too many of his rights
• courts restrict number of rights which can exist as easements

  Hunter v Canary Wharf Limited [1997] 2 All ER 426

  Facts:

  • Cs claimed D's construction interfered with their right to television reception
  • Ds argued at common law, can build whatever you want on own land, unfortunate if interferes with neighbour's air light or view

  Issue:

  • could there be easement for right to television?

  Held:

  • no easement for television as imposes too high burden on builder:
    no way of knowing precise effect on television reception
    not limited to possible interference in immediate neighbourhood: an indeterminate number of [claimants], each claiming compensation in a relatively modest amount...
  • usually can rely on planning permission procedure to raise objections
  • also in instant case issue was temporary due to reconfiguration to new transmitters
  • considering distinction in Dalton v Angus (1881) easement of light, air or support different as can be more precisely defined & right may be acquired if enjoyed for a long period (by prescription)
• right to a view cannot be protected by an easement

  Dalton v Angus (1881) 6 App Cas 740

  • distinction between right to a view & rights to light, air & support
  • right to a view imposed a burden on a very large and indefinite area
• limitations apply to extent owner of servient land is excluded from using the land himself

  Copeland v Greenhalf [1952] Ch 488

  Facts:

  • D use part of C's land to store vehicles

  Issue:

  • was there a valid easement?

  Held:

  • no valid easement: there was no limit to number of vehicles or period of time each could be stored with effect of excluding C (servient owner)
• issues arise when use of land seems to exclude owner of land

  London & Blenheim Estates v Ladbroke Retail Parks [1992] 1 WLR 1278

  • question of degree: right not easements if effect is to leave servient owner without any reasonable use of his land

  Miller v Emcer Products Ltd [1956] Ch 304

  • exclusion of servient owner is to a greater or lesser degree common feature of many easements
  • claim to an easement only rejected if extent of ouster so great as to be incompatible with an easement
• distinction can be drawn between positive & negative easements

  Phipps v Pears [1965] 1 QB 76

  • positive easement: gives owner of dominant land right to do something on servient land (such as right of way)
  • negative easement: gives owner of dominant land right to prevent owner of servient tenement doing something on servient land (such as right to light)
  • in instant case, easement for protection from the weather rejected as would impose unreasonable restriction on the ability to redevelop property

Acquisition: by express grant or reservation

• easements may be legal interest

  Law of Property Act 1925

  • s.1(2)(a): easement is capable of being a legal interest & can be legal only if its duration is equivalent to an estate in fee simple absolute (without a time limit) in possession or a term of years absolute (for limited period)
• to create legal easement owner must: grant a permanent right (equivalent to estate in fee simple absolute) or grant a right for a fixed period (equivalent of term of years absolute)
• easements may be equitable interest: if for uncertain duration or was created by correct formalities (defect of form)
• deed is required to create a legal easement

  Law of Property Act 1925

  • s.52(1): interest in land is void for the purpose of conveying or creating a legal estate unless it is made by deed
• if a person is selling part of their land they may wish to reserve certain rights in their favour (reserving an easement)
• to create legal easement over registered land: must comply with registered conveyancing rules

  Land Registration Act 2002

  • s.27(1): disposition of a registered estate which is required to be completed by registration does not operate at law until registration
  • s.27(2)(d): registration required: express grant or reservation of interest that falls within s.1(2)(a) LPA 1925
• express grant of legal easement requires registration on Property Register & will bind successive owners of servient land
• if legal easement not registered: failure to comply with required formality means pending registration, easement is equitable & will not bind buyer of servient land
• therefore 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

Acquisition: by implied grant or reservation on sale of part

• after sale of part of his land seller will have right to exercise over land sold to buyer:
  easements of necessity
  easements implied due to common intention of buyer & seller at time of sale
• after purchase of part of land, buyer will have right to exercise, over land retained by seller: easements of necessity
  easements implied due to common intention of buyer & seller at time of sale
  easements created under rule in Wheeldon v Burrows (1879)
  created under s.62 LPA 1925
• implied easement of necessity may be found in relation to business use of premises

  Wong v Beaumont Property Trust [1965] 1 QB 173

  Facts:

  • C ran restaurant from basement of building leased from D
  • C needs to place a ventilation duct on rear of building at request of local hygiene inspector
  • C's lease contains covenants not to cause nuisance, to control & eliminate all food smells & comply relevant food hygiene regulations
  • D refuses permission to erect ventilation duct on building

  Issue:

  • could an easement be implied?

  Held:

  • lease is for part of building so qualifies as sale of part of land & implied easement capable of applying
  • implied easement of necessity: C cannot continue business without easement permitting ventilation duct
• rule providing for implied easement: if no express provision allows buyer on sale of part to acquire implied easement over retained land of a seller

  Wheeldon v Burrows (1879) 12 ChD 31

  Facts:

  • T owned two pieces of adjacent land: the plot & the workshop
  • workshop windows overlooked the plot & received light over it
  • plot was sold to W & T did not expressly reserve right of light for benefit of workshop
  • W died & ownership passed to X
  • T sold workshop to B
  • X erected hoarding, blocking light to workshop
  • B removed the hoarding & X sued for trespass

  Issue:

  • was there an implied easement?

  Held:

  • T had not reserved right of access of light, no such right passed to B & X could obstruct light
  • rule allowing buyer implied easement of retained land of seller, arises if right was:
    continuous
    apparent
    necessary for reasonable enjoyment of the land
    being used as quasi easement by seller for benefit of part of land being sold, at time of sale
  • based on maxim: grantor shall not derogate from his grant
• A owns house & adjoining field, track runs from house across field to lane
  A uses track as shortcut to lane
  A owns & occupies both pieces of land so no easement (right to use track would be capable of being easement if different owner: so is quasi-easement)
• A sells B house but retains field & no express easement granted (for B to have right to use track)
  issue: can B acquire implied easement under rule in Wheeldon v Burrows?
  yes if: previously A used track as quasi-easement & A's use was continuous, apparent & necessary to reasonable enjoyment of house
• A sells B field but retains house
  A should have expressly reserved right of way over track
  if claim of easement of necessity fails, rule under Wheeldon v Burrows will not assist A
• meaning of continuous & apparent important in establishing whether implied easement exist under rule in Wheeldon v Burrows

  Ward v Kirkland [1967] Ch 194

  • continuous & apparent: requires feature on servient land which on is apparent on inspection
  • feature must have degree of permanence (eg. drains or path)

Acquisition: under s.62 Law of Property Act 1925

• easement may be implied under s.62 LPA 1925

  Law of Property Act 1925

  • s.62: implies general list of words into conveyance of land (including buildings, fences, hedges)
• s.62 LPA 1925 minimises length of conveyance document as many features are implied
• s.62 LPA 1925 provides for automatic passing of rights of a permanent nature (such as easements) in transfer of land, but has been interpreted to have wider meaning

  Wright v Macadam [1949] 2 All ER 565

  Facts:

  • T (tenant of part of property) had mere licence to use coal shed
  • grant of new tenancy to T amounted to transfer of land
  • therefore s.62 LPA 1925 words were implied

  Issue:

  • was easement created?

  Held:

  • right to use coal shed was capable of being an easement & implied inclusion in deed transformed licence into legal easement
• new easement may be 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 a licence or permission capable of being easement
  & generally diversity of occupation at time of sale
• s.62 LPA 1925 capable of converting privileges allowed under initial part sale of land into easements (with no requirement for right to be continuous & apparent or necessary for reasonable enjoyment of the part)

  Goldberg v Edwards [1950] Ch 247

  • a privilege which was not necessary to reasonable enjoyment of the land converted to implied easement under s.62 LPA 1925 on second lease

Acquisition: by prescription

• easement may be acquired by prescription: without express or implied grant & no need for sale of part
• A owns land with house on it, adjoining B's field
  A uses track cutting across B's field to access house (as shortcut)
  A has used track for many years, B has not given permission but has not prevented use
  prescription may allow A to claim an easement
• easement by prescription requires satisfaction of common law conditions

  Mills v Silver [1991] Ch 271

  Facts:

  • only vehicle access to Ds hill farm was by track across C's adjoining farm
  • 1922 - 1981 occupier of hill farm used track openly (on occasions when dry enough to be passable)
  • C's predecessors knew of track use but gave no express permission
  • 1981 - 1985 very little use was made of track
  • 1987 Ds engaged B to lay stone road along track to make it usable in all weather conditions
  • C sought injunction to prevent Ds using track & damages for trespass against Ds & B

  Issue:

  • did an easement by prescription exist?

  Held:

  • first instance judge: found in favour of C, no easement acquired
  • Court of Appeal: Ds had vehicular right of way by lost modern grant, but only entitled to repair track not improve
  • to acquire easement by prescription, person claiming right must show acts or use on which reliance is placed satisfy three requirements:
    without force (nec vi): no objection raised by servient owner
    without secrecy (nec clam): possible for servient owner to discover & user must be exercised openly
    without permission (nec precario)
  • if three requirements exist user is as of right
  • Parker LJ: use must be such as to bring home to the mind of a reasonable person that a continuous right of enjoyment is being asserted
  • servient owner must take action to prevent use becoming easement acquired by prescription
• user as of right must also satisfy two more common law conditions:
  must be fee simple owner against a fee simple owner
  use must be continuous for requisite period of time
• to claim right by prescription at common law: must show right enjoyed for time immemorial (since 1189)
• to overcome issues proving requisite period: presumption introduced doctrine of lost modern grant (if exercised for more than 20 years right must have originated by grant & deed containing grant lost)
• there is also statutory provision for acquiring easement by prescription

  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
    but not prevent easement being prevented in another way
    right enjoyed for 40yrs: absolute & indefeasible unless shown enjoyment depends on express written consent
  • s.4: requires 20 or 40 yr periods to be next before some suit or 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 from time immemorial (difficulty in showing use since 1189)
  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
• separate statutory provision for acquiring easement of right to light

  Prescription Act 1832

  • s.3: right to light enjoyed without interruption for 20 yrs & without written consent becomes absolute & indefeasible
• under s.3 PA 1832 user does not have to be as of right (without force, secrecy & permission)
• there is no statutory guidance as to amount of light dominant land entitled to

  City of London Brewery v Tennant (1873 - 74) LR 9 Ch App 212

  • entitlement to: 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]
• amount of light required determined on facts, taking account of extent of burden on servient land
• easements acquired by prescription: are implied into as deed & legal easements

Protection of easements

• expressly created legal easement: must be completed by registration (s.27(2)(d) LRA 2002) to become legal easement
• if not legal easement buyer will take free from it (s.29 LRA 2002)
• Sch.3 para.3 LRA 2002 does 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 so no need to register & will be overriding interest under Sch.3 para.3 LRA 2002 if:
  obvious to buyer on reasonably careful inspection of land
  buyer knew of it
  user can prove exercised right in yr prior to sale
• easement by prescription also overriding interest under Sch.3 para.3 LRA 2002

Extinguishment of easements

• easement may be expressly released by deed
• if dominant land owner purchases servient land, easements will cease
• easements may also be abandoned

  Moore v Rawson (1824) 3 B & C 332

  Facts:

  • house on C's land benefitted from a right of light (from D's land) to certain windows on one wall of house
  • C's predecessor took down wall & replaced without windows
  • 14 yrs later D built wall facing C's then windowless wall
  • 3 yrs later again C put windows in wall of house (as originally there) & claimed D's wall interfered with light

  Issue:

  • was there an easement?

  Held:

  • C's predecessor, by erecting windowless wall, had extinguished right to light
  • if there had been indication of intent to put in windows within reasonable time, may been sufficient to preserve right
  • in instant case, strong indication (17 yrs passing) that right was abandoned

Reform

• in 2011 Law Commission published recommendations for reforming law of easements

  Making Land Work (Law Com. No. 327)

  • 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