Establishing Valid Easements, Study notes of Property Law

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An easement is a right to use a person’s land for the benefit of another piece of land. Before you can claim a valid easement,you have to establish that the right is capable of being called an easement in the first place. Recognized easements ● A right of way (Borman v Griffith ) ● A right to lay and maintain drains, sewers and pipes (Simmons v Midford ) ● A right to storage (Wright v Macadam ) ● A right to park a car (London & Blenheim Estates Ltd v Ladbroke Retail Parks ) There must be a dominant and a servient tenement There must be the existence of dominant and a servient tenement. The dominant tenement is the land which has the benefit of the right over the other land. The servient tenement is the land that the right is exercised over and therefore has the burden of that right. Both must be identified at the time easement is created. The dominant and servient tenements must be owned or occupied by different people The dominant and servient tenements must be owned OR occupied by different persons because a person cannot have an easement against themselves ( Roe v Siddons) The alleged easement must accommodate (i.e. benefit) the dominant tenement The right claimed must benefit the dominant land itself, and not just a right that benefits the owner of the dominant land in his personal capacity ( Hill v Tupper). In Platt Ltd v Crouch a right to use river moorings was recognised as an easement. Here the dominant land was a hotel and the use of the moorings on the servient land was part of the hotel’s business. The easement was connected with the business on the dominant land. Similarly in Moody v Steggles , a sign advertising a pub on the servient land was capable of being an easement because the easement was connected with the business on the dominant land. However in Re Webb’s Lease , a sign advertising boxes of matches was held not to benefit the dominant tenement, which was a shop selling meat, groceries and provisions. Had the sign advertised the shop, rather than just the matches, an easement might have been found.

The condition that the right must accommodate the dominant tenement also means that the dominant and servient tenements must be sufficiently close for the dominant land to be able to claim the benefit from the right (Bailey v Stephens). The dominant and servient lands do not have to be right next to each other though (Pugh v Savage ). The alleged easement must be capable of forming the subject matter of grant This means that all easements must be capable of being granted expressly in a deed. The satisfaction of the following four requirements will meet this condition. . **1) There must be a capable grantor and a capable grantee

2. The right must be sufficiently definite:** You must be able to define the right you wish to claim as an easement. For example, you can define where a footpath goes or where a drain is placed. In Re Aldred , a right to ‘a good view’ could not exist as an easement, as it was simply too indefinite to exist as a property right. However, the decision of the Supreme Court in Coventry v. Lawrence (No 1) , implies that this criterion should not be applied too rigidly. 3) The right must be analogous to existing easements: The easement must already have been recognised in the courts or it must be similar to the one that you are claiming by analogy. In Regency Villas Title Ltd v Diamond Resorts the Supreme Court recognised a new category of easements relating to recreational and sporting rights. The result of this case is that grants of purely recreational and sporting rights over land which genuinely accommodates neighboring land can be recognized as easements. The Supreme Court stated that physical exercise was an essential or desirable part of modern life and that an easement in the form of physical exercise could not be ruled out.
3. It is pertinent to mention that the servient tenement does not have to take positive action or spend money to enable the dominant owner to carry out his right. If the servient owner is required to take positive action or spend money then the right will not be recognised as an easement ( Regis Property Co Ltd v Redman). As stated in William v Arya “The servient owner only obligation is to refrain from doing anything that impedes enjoyment of the easement by the dominant owner”. The right must not totally exclude the servient owner:

This means the dominant tenement must ensure that the right does not prevent the servient owner from using his land altogether. There is a reluctance to recognise a right as an easement which gives the alleged dominant tenement a large measure of occupation or control of the servient land (Copeland v. Greenhalf). In Batchelor v Marlowe and Central Midlands Estates v Leicester Dyers , a right to park several cars on the servient land could not be an easement as the impact on the servient tenement was too great and was inconsistent with the limited nature of easements. The key question is whether the easement would leave the servient owner a reasonable use of his own land. In R Square Properties v. Nissan Motors , the court allowed an easement to park over 80 cars on the servient land because this did not completely deprive the servient owner of the reasonable use of his land. However in Moncrieff , Lord Scott suggested (obiter) that the relevant test is whether the alleged easement leaves the servient owner in “possession and control of their land”. On this view, even very extensive use of the servient land might amount to an easement, provided that the servient owner retained possession and control.

Creation of an easement

Express Legal easements Section 1(2) of the Law of Property Act 1925 defines the interests in land that are capable of being legal. Section 1(2)(a) applies to the creation of easements. For an easement to exist in law, it must be equivalent to fee simple absolute in possession or terms of years absolute (s.1(2)(a) LPA 1925). If it is an express easement then it must be created by deed under section 52 of LRA 2002. The requirements for a valid deed are found in section 1 of the Law of Property (Miscellaneous Provisions) Act 1989. In essence the deed must be in writing, clear on the face of it that it is intended to be a deed, signed by the person making the deed in the presence of a witness who attests his signature and be delivered as a deed. Express Equitable easements The Easement would be equitable provided that the easement is embodied in a written contract that equity regards as specifically enforceable (s.2 of the Law of Property (Miscellaneous Provisions) Act 1989 i.e. the contract must be in writing, signed by or on behalf of both parties to

the contract, and it must contain all the express terms of the agreement. A contract that does not meet these requirements is void, which means it is as though it never existed. Implied easements If implied in deed or registered disposition then legal but if is implied in a specifically enforceable contract then it will be equitable. Implied grant of necessity Easement of necessity arises most frequently where the dominant land is landlocked by the servient land. Thus dominant tenement can only reach his land by trespassing onto the servient tenement land. In such a situation the courts will imply an easement of necessity of a right of way into the conveyance document. As the case of Re MRA Engineering makes it clear that a real necessity must exist because here we are considering easements of necessity, not of convenience.. In Walby v Walby , the court has emphasized that the test is a strict one and the claimant must show that, without the easement, the land could not be used at all. In Manjang v Drammeh , an easement of a right of way by necessity could not exist over the alleged servient land, because the owner of the dominant tenement could access his land by boat along a navigable river. Implied grant of mutual intention Here the courts are giving effect to terms that they think the parties would have put in had they thought about it a bit more. It is pertinent to mention that the easement does not have to be necessary for the use of the land. (Linvale v Walker) In Stafford v Lee , the claimant (the purchaser) wished to build a house on his own land, when the only practical access for construction purposes was over the defendant’s land. As the land had been sold to the claimant by the defendant with a view to the construction of a house, an easement of right of way for the purpose of construction was held to have been granted.

Easements implied under the rule in Wheeldon v Burrows (legal or equitable

easement): GRANT ONLY

The rule in Wheeldon provides that, where a person transfers/leases part of his land to anothe r, that transfer impliedly includes the grant of all right in the nature of easements (quasi- easements) that the seller enjoyed and used prior to the transfer of the dominant land. However, before this happens there are certain conditions which must be satisfied

1. Only those rights that are capable of being easements within the Re Ellenborough criteria may become easements by operation of the Wheeldon rule.
2. The alleged right must have been being used prior to the sale or lease. Failure to establish that the right was previously used is fatal ( Alford v. Hannaford ) 3) The quasi-easement must have been ‘continuous and apparent’ and ‘necessary for the reasonable enjoyment’ for the part transferred. The COA in Wood v Waddington held that both of these conditions need to be satisfied.
3. The quasi easement must be used by the owner for the benefit of the part sold or leased or his alter ego or as acting at his direction and with his permission as in Hillman v Rogers Continuous means that the right must be used on a regular basis without interruption ( Wood ). Apparent means that it must be visible on inspection of the servient land, or so obvious that its use for the benefit of the part sold is beyond doubt. In Millman , the fact that lay-by (the right of way) was covered in tarmac was evidence that it was “continuous and apparent”.
4. “ Necessary for the reasonable enjoyment of the land” : The other requirement is that the easement must be necessary for the ‘reasonable enjoyment’ of the land. The emphasis is on reasonable enjoyment, not necessity as seen in Hillman v Rogers where the use of the lay-by (i.e. the right of way) made access to the property considerably safer was enough to establish its contribution to the reasonable enjoyment of the land. By no stretch of imagination was this lay-by ‘necessary’ in order to access the land; it merely facilitated its reasonable use.

How do you know whether a legal or an equitable easement has been created here? If the sale or lease of the dominant tenement is by deed (or registered disposition) the easement will be legal, and if the sale or lease of the dominant tenement is by an enforceable written contract then the easement will be equitable ( Borman v Griffiths ).

Implied grant under section 62 of the Law of Property Act 1925 (legal

easement)

Section 62 will convert into easements all of those rights that were previously being enjoyed for the benefit of land sold/leased. Prior diversity of occupation (leases situation most likely ) The right will be converted into an easement (a proprietary right) under section 62 of the Law of Property Act 1925 if the following conditions are met:

1. The right that is being claimed must be capable of being an easement by meeting the conditions stated in Re Ellenborough Park
2. The dominant and servient tenements are owned by one person but there is separate occupation of the dominant and servient tenements. This concept is known as diversity of occupation and is established in Long v Gowlett.
3. The right must have been used prior to the conveyance
4. The owner of the servient tenement uses a deed to sell or transfer the dominant tenement to the occupier; or
5. The owner of the servient tenement uses a deed to grant or renew a lease of the dominant tenement to the occupier; or Land owned and occupied by the same person In Wood v Waddington it was stated that “in cases where there has been no diversity of occupation, all that is necessary to establish is that the exercise of the relevant rights has been continuous and apparent in the sense developed for the purposes of the rule in Wheeldon v Burrows.” So, in a Wheeldon v Burrows-type situation where one person owns and occupies land and then divides the land, selling the dominant part and retaining the servient part, under Wood v Waddington, Section 62 will create a new easement if the right is continuous and apparent and the use must have been for the enjoyment of the land conveyed. In P & S Platt Ltd v Crouch , it was held that, provided that the easement was continuous and apparent, there was no need for diversity of occupation,

The ‘continuous and apparent’ condition is the same as in Wheeldon but, unlike Wheeldon, you do not have to prove that the right is ‘necessary to the reasonable enjoyment of the land sold’ hence the criteria is relatively easy to satisfy. Wright v Macadam The case is an illustration of the operation of section 62 in context of a lease. Mrs Wright was a weekly tenant in a flat in Mr Macadam’s house. He gave Mrs Wright permission to store coal in his coal shed. She was granted a new tenancy of the flat. It was held that the right to store the coal was a recognized easement of storage. The privilege of storing the coal had been converted into a legal easement as it had been implied into the document granting the new tenancy, which was deemed to be a conveyance for the purpose of section 62. Goldberg v Edward A licensee enjoyed a limited access by permission over her ‘landlord’s’ land, and when a new tenancy by deed was granted to her, that permissive right was transformed into an easement What is the difference between easements acquired under section 62 and those acquired under the rule in Wheeldon v Burrows?

1. Wheeldon operates where the seller was in occupation of all of the land before the sale of the dominant part and he (or his alter ego) used the potential easement. Section 62 can operate in the same circumstance if the easement is continuous and apparent, but it has a wider application to cases of ‘prior diversity’ which are not within Wheeldon.
2. Wheeldon creates easements only where the right is ‘continuous and apparent’ and ‘necessary for the reasonable enjoyment of the land’. Section 62 does not depend on necessity of reasonable enjoyment. However, in cases where there is no ‘prior diversity of occupation’, section 62 then requires that the alleged easement be continuous and apparent
3. Wheeldon can imply easements into a legal or equitable sale or lease and may, therefore, create legal or equitable easements. Section 62 operates only where the sale or lease is a conveyance and can create only legal easements

The reservation of an easement Reservation of an easement occurs when a landowner sells off part of his land and retains a right (i.e. easement) over the land he has sold. Express reservation An express reservation is where the owner of the dominant tenement deliberately and expressly keeps (i.e. reserves) the right for themselves when they sell or lease part of their land to another. The land remaining with the seller becomes the dominant tenement, and the piece sold/leased becomes the servient tenement. If the conveyance is by deed or registered disposition, the easement is legal. If the transfer is by written contract, the easement is equitable. Implied reservation through necessity (legal easement) or implied reservation through intention (legal easement) The classic example where an easement would be implied through necessity is where the land is landlocked, so without the easement there would be no way of accessing the land. The courts are not sympathetic in implying a reservation of an easement because the seller has it entirely within his power to expressly reserve an easement as a condition for sale.

Protection of easement

Unregistered land

1. Legal easement or
2. Equitable easement Registered land
3. Dealings which must be completed by registration
4. Interests which override a registered disposition
5. Interests entered as a notice or protected by a restriction Unregistered land Unregistered land – legal easement Legal rights bind the world hence would be binding on third parties.

Legal easements which will be binding on third parties are those:

1. created expressly by deed or
2. a legal easement implied through necessity or
3. a legal easement implied through mutual intention or
4. a legal easement under Wheeldon v Burrows when there is a deed or
5. a legal easement under section 62 of the Law of Property Act 1925 Unregistered land – equitable easement An equitable easement must satisfy the requirements of section 2 of the Law of Property (MP) Act 1989, or an equitable easement created under the rule in Wheeldon v Burrows where there is a written agreement but not a deed. Assuming that the equitable easement was created after 1925: An equitable easement created after 1925 is capable of entry as a land charge under the Land Charges Act 1972. It is in the dominant tenement interest to enter the equitable easement as a land charge as he benefits from the right. The dominant tenement should have entered the equitable easement of a right of way as a class D(iii) land charge against the name of servient tenement, who is the owner of the land that the right is over. If equitable easement is entered as a land charge, it will bind third parties under section 198 of the Law of Property Act 1925 and they must let dominant tenement continue to use the right of way. Registered land
6. Dealings which must be completed by registration under section 27 of the Land Registration Act 2002.
7. Interests in Schedule 3 to the Land Registration Act 2002 which override a registered disposition.
8. Interests entered as a notice under section 34 of the Land Registration Act 2002 and interests protected by a restriction under section 43 of the Land Registration Act 2002. Express Grant and reservation Under section 27 of the Land Registration Act 2002, an express grant or express reservation of a legal easement must be completed by registration. Interests which override a registered disposition Under paragraph 3 of Schedule 3 to the Land Registration Act 2002 a legal easement acquired:
9. By an implied grant of necessity or

2. By an implied grant of mutual intention or
3. Under the rule in Wheeldon v Burrows when there is a deed or
4. Under section 62 of the Law of Property Act 1925 or
5. Under implied reservation through necessity or
6. Under implied reservation through mutual intention Will be an interest that overrides if any of the following conditions is met:
7. The person who bought the land which had the easement over it knew about the easement (actual notice) or
8. The easement would have been obvious to the person who bought the land on a reasonably careful inspection of the land (constructive notice)
9. The easement had been used in the last year before the land was sold. The third condition just states that if it’s been used in the last year then it’s binding whether you’ve noticed it or not Interests entered as a notice or protected by a restriction An equitable easement must be entered as a notice (section 34 of the Land Registration Act 2002). Equitable easements here would be those satisfying the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 or those equitable easements created under the rule in Wheeldon v Burrows when there is a written contract but not a deed. If you have entered the equitable easement as a notice, it will bind third parties.