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Easements

Previous: Proprietary estoppel

An easement is a right granted over one piece of land for the benefit of another piece of land. The prime example is that of the right of way: I may allow you to use a path passing over my land to access your land. This is an example of a positive easement: you are being granted a positive right to use my land to access yours. Negative easements also exist, but it may be considered that restrictive covenants are better suited to prohibiting certain uses of land.

Requirements

Dominant and servient land

Firstly, an easement must be granted over land which ‘serves’ another piece of land. The ‘benefiting’ land is known as the dominant land, and the ‘serving’ land is known as the servient land.

Accommodation of dominant land

The easement must accommodate the dominant land. If an easement serves to benefit a business placed on land, and not the land itself, as in Hill v Tupper (1863), it will not be classed as an easement. But if an easement will benefit future owners of that land, or a business as a result of it being for the benefit of land, it will be classed as an easement, according to Moody v Steggles (1879) and Platt v Crouch [2003] respectively. According to Re Ellenborough Park [1956], just because the value of dominant land is increased by a right does not make that right an easement.

Diversity of occupation

As distinct from ownership, easements will only operate where land is occupied by different people. Although easements may operate between and landlord and tenant, according to Wright v Macadam [1949]. The Law Commission has recommended abolishing this requirement.

Capable rights

Both the grantor (owner of servient land) and grantee (owner of dominant land) must have capacity when creating a covenant. The right itself must be definable in a deed for the covenant to be effective. As such, the right to a view will not be classed as an easement, for example.

No expenditure

An easement may not require that the servient land owner expends money. As such, in Regis Property Co v Redman [1956], there could be no easement to provide hot water. There are two exceptions to this requirement: there can be an easement to keep a fence or wall in good repair, according to Crow v Wood [1971], and landlords can be obliged to keep in good repair ‘common parts’ of rented accommodation, according to Liverpool CC v Irwin [1977].

Not a claim to exclusive possession

Unlike a lease, an easement is not consistent with a claim to exclusive possession of the servient land. Whilst according to Wright v Macadam [1949], a right to store coal in a shed did not amount to such a claim, Copeland v Greenhalf [1952] rejected that an easement could allow the parking of as many cars as wanted by the dominant land owner for an indefinite period. An easement may also not amount to exclusive possession of a small part of the servient land, as according to Batchelor v Marlow [2001], only the area of land benefiting the dominant land is to be regarded when considering the question of exclusive possession.

Exclusive possession has been found in past cases where: cars could be parked anywhere on land, in London & Blenheim Estates v Ladbroke Retail Parks [1992], and 6 cars could be parked during working hours in Batchelor v Marlow [2001]. However, more recently, courts have been less inclined to find that easements amount to exclusive possession. In Moncrieff v Jamieson [2007], it was recognised that even if fully occupied with cars, owners of servient land can still exercise other rights, such as access, erecting signs and digging. Following this relaxation, no easements were found in the similar cases of Virdi v Chana [2008] and Kettel v Bloomfold [2012].

In the general nature of rights recognised as easements

Finally, easements must be able to be ‘generally recognised’ as easements. As a result of this requirement, Phipps v Pears [1965] denied an easement to protect the dominant land from weathering, and Hunter v Canary Wharf [1997] rejected an easement to facilitate television reception.

Creation of easements

Easements can be either legal or equitable rights. If created: with the same duration as their servient legal estate (under s 1(2) LPA 1925); by deed (under s 52 LPA 1925) and registered if required (under Schedule 2 LPA 1925), an easement will be classed as a legal easement. If any of these requirements are not fulfilled, the easement will be equitable.

Easements can also be either granted or reserved. An easement will be reserved if land is split physically before sale, and granted where there is no division. There is a general attitude against implied reservation, as it is preferred that landowners expressly reserve rights, as said in Wheeldon v Burrows (1879). Finally, easements either be expressly or implied created (granted or reserved).

Express grant

Where an easement is granted explicitly, it is less common for problems of enforceability to arise. The terms of the easement must be respected, and a grant may only take place if the grantor has the power to grant such an easement.

Implied grant

Disputes commonly arise where has been no express grant of an easement. Instead, the owner of the dominant land will claim that he had the benefit of an easement granted impliedly to him. There are 4 methods by which an easement may be impliedly granted: by necessity, by common intention, under the rule in Wheeldon v Burrows (1879) and under s 62 LPA 1925.

Easements of necessity

An easement may be implied if it was essential for the use of the dominant land at the time of its transfer to the new dominant owner. Necessity is usually only effective where denying an easement would leave a dominant owner’s land landlocked. According to Nickerson v Barraclough [1981], a court may even frustrate parties’ intentions to find that an easement of necessity was impliedly granted.

Necessity is a tough threshold to pass, however. In Manjang v Drammeh [1990], no easement of necessity was found where access by river was possible, and in Titchmarsh v Royston Water (1899), no easement of necessity was found where access up a steep bank was possible. More recently, Adealon International Corporation Proprietary v Merton LBC [2007] raised the possibility of it being necessary to have vehicular access to land.

Easements of common intention

Easements of common intention may be impliedly granted if they are necessary for a definite and particular purpose, according to Pwllbach Colliery Co v Woodman [1915]. A good example of implication through common intention is Wong v Beaumont Property Trust [1965]: both parties intended the claimant to use land as a restaurant, therefore, as it was a legal requirement for the restaurant to be ventilated, there was deemed to be an easement of common intention for a ventilation duct to pass through the defendant’s land. There need not be explicit intent by both parties, according to Stafford v Lee (1993), but merely knowledge of the proposed use by both parties. This may include an expectation of utility connection for a modern house in Donovan v Rana [2014], or an expectation of vehicular access in Sweet v Sommer [2005].

The rule in Wheeldon v Burrows (1879)

Easements may also be impliedly granted if, where there is no diversity of occupation prior to the sale of land, a purchaser could expect to have the benefit of an easement over land retained by his vendor. This right must be continuous and apparent, as illustrated by Wheeler v JJ Saunders [1996], and it must be necessary for the reasonable enjoyment of the land sold off. This will not include secondary access, according to Wheeler v JJ Saunders [1996], unless such access will provide a significant benefit, as in Borman v Griffith [1930]. Finally, the right must have been in actual use both before and at the time of the sale. This requirement is not a strict requirement, as illustrated by Costagliola v English (1969), where an easement was impliedly granted despite having not been used for 11 months. Borman v Griffith [1930] confirms that the rule can be contracted out of.

Easements implied under s 62 LPA 1925

Section 62 of the Law of Property Act 1925 is a word saving provision. It ensures that rights enjoyed by a previous owner of (dominant) land are transferred to its new owner. However, it has the side effect, according to case law, of being able to turn informal rights into enforceable easements. The prime example is Wright v Macadam [1949], where a coal storage right was converted into an easement upon the renewal of a tenancy agreement. The burden is on the vendor to show that there was no intent to create an easement, according to Platt v Crouch [2003], and Wood v Waddington [2014] found it difficult to justify how an act of kindness can become a legally enforceable right.

For an easement to be granted under s 62, there must have been a legal conveyance as defined by s 205(1)(ii) LPA 1925; and the right must have been in actual use of the time of the conveyance for the benefit of the dominant land. In Goldberg v Edwards [1960], a personal right of access through a house by way of a bare licence was enough to created an easement as it had been used at the practical time of the conveyance (any backdating was ignored). If permission for each use of the right is required, as it was in Green v Ashco [1966], an easement will not be implied; nor will implication occur where a right is clearly temporary, according to Wright v Macadam [1949]. It is not required that the vendor used the right: in Graham v Philcox [1984], the right was used by a tenant and the freehold sold. The right was still deemed to have been in actual use.

There is some debate over whether diversity of occupation is required for s 62 to operate. Sovmots Investments v SS Environment [1979] suggests that diversity of occupation is required, as not to abolish the rule in Wheeldon v Burrows (1879), which also requires a right to be necessary for the reasonable enjoyment of land sold. However, a number of cases have made suggestions in the alternative:

If these exceptions to apply, the Wheeldon v Burrows rule will still be required where there is no formal conveyance deed or s 62 is contracted out of.

Reform

The Law Commission have suggested that the same rules should apply to both grant and reservation, with only 1 method of creation. Under statute, the Law Commission would prefer easements to be created only where they are objectively necessary for the reasonable use of land. They also proposed the abolition of s 62.

Effect of easements

Once an easement has been created, the dominant land owner will have recourse against the servient land owner for interference with that easement. According to B&Q v Liverpool and Lancashire Properties [2001], damages will be available for minor interference, and injunctions for substantial interferences. In Celsteel v Alton House Holdings [1995], the narrowing of an easement constituted a substantial interference based on the way in which is was used, and in Saint v Jenner [1973], although the addition of speed bumps to a right of way did not constitute a substantial interference, the interference became substantial as the road underneath deteriorated.

The extent of an easement must be determined by its words put into context. As such, in St Edmundsbury and Ipswitch Diocesan Board of Finance v Clark (No 2) [1975], a right of way did not include use by vehicles; but in Moncrieff v Jamieson [2007], a right of way did include an ancillary right to park.

Changes in use

Where a dominant owner wishes to change the use of his land, a court must mediate between hindering that landowner’s development and protecting the servient land owner’s enjoyment. Intensification will usually give rise to a nuisance claim, but radical intensification may suspend the easement. In McAdams Homes v Robinson [2004], when a servient owner blocked a drain following the dominant land owner’s change in use from a bakery to multiple residential dwellings, the servient land owner could not be sued for doing so: the easement had been suspended. In Jelbert v Davis [1968], converting a farm into a 200 plot caravan site substantially intensified the use of a right of way to access the farm. The court did not rule on how many caravan plots could be supported without the easement being suspended.

Use by non-dominant land

As a general rule, easements may not be used by owners of land other than of the dominant land. This was confirmed Peacock v Custins [2002]. Peacock v Custins [2002] and Das v Linden Mews [2002] are opposed over the possibility of a dominant land owner using easements to access non-beneficial ancillary land. The only clear exception to this rule, given that Wall v Collins [2007] should be ignored, is National Trust v White [1987], where the owners of dominant land permitted an easement to be used to access an ancillary car park.

Successors

Successors of servient landowners

In unregistered land, legal easements will bind everybody, and equitable easements will require registration as class D(iii) land charges under the Land Charges Act 1972 if created after 1925.

In registered land, legal easements will override first registration, according to Schedule 1, paragraph 3 of the Land Registration Act 2002 and will bind successors if protected by registration. Equitable easements must be recorded on the land charges register of servient land to bind successors of servient land, unless overriding when the Land Registration Act 2002 came into force.

Successors of dominant landowners

Easements are automatically passed to successive dominant landowners provided a deed is used in the relevant conveyance. In the alternative, the benefit of easements may be expressly assigned.

Extinguishment of easements

Easements can be extinguished where: the dominant and servient land are merged together (merger); an express release deed is executed, or the easement is impliedly extinguished with mutual intentions. The latter method is very difficult to ensure, given that in Benn v Hardinge [1992], an easement was not impliedly extinguished despite a lack of use for over 175 years.

The Law Commission has proposed that extinguishment should be possible either by registration, after 20 years without use, or on application to the Land Chamber of the Upper Tribunal.

Next: Freehold covenants

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