Easements

- A right attached to one piece of land that burdens another piece of land.
- Example, right of way over a neighbour's drive to access your own house.
- The difference between an easement and a licence.
- Can be a positive or negative right.
Negative = Restricts use of land
Positive = Positive right to use someone else’s land
- The difference between an easement and a license is a license doesn’t bind the land, an
easement does.
- An easement allows you to do something by right, where as a license allows you to do
something with permission.

The essential characteristics of an easement: Re Ellenborough Park [1956]

1. A dominant and a servient tenement.

- 2 pieces of land, one which has benefit of easement (Dominant) and one which has the
burden (Servient)
- Easement in Gross = Can’t have an easement without owning some land which can benefit
from an easement.

2. The easement must “accommodate” the dominant tenement.

- Easement must be connected to normal enjoyment of property.

- Easement must enhance the owners enjoyment of land.
- Cannot be a purely personal right.
- Any tenement or owner would consider…

3. The dominant and servient tenements must not be owned and occupied by the same person.

- Cannot give yourself a right over your own land

- Do not need a right over your own land.
- Quasi - easement, if one of the 2 properties were sold, if conditions satisfied could become a
full easement.

4. The right over the land must be capable of forming the subject matter of the grant (or “must lie in
grant”):

- There must be a person capable of receiving a grant and somebody able to grant.
- The nature of the right must not be too wide or vague. Also must be clear & the owner of
servient tenement must not be deprived of his rights as tenant owner.
- The right must be more than one of “mere amusement and recreation” (must have benefit)
- The right must not be inconsistent with the ownership of the servient land:
o Does the specific right stop the owner from using the whole of the land

- Wright v Macadam [1949] 2 KB 744

o Mr Mcadam was not restricted of the right of all of his shed, he was still able to use
it and enjoy it.
- Copeland v Greenhalf [1952] 1 Ch 488
 o Easement to use neighbours land to park cars & claim was unsuccessful as so much
of neighbours land was taken up by cars he had be over deprived of his own land
and couldn’t enjoy it meaning it was not capable of being an easement.

The court is unlikely to recognise any new negative easements Phipps v Pears [1965].

- They restrict what the servient owner can do with his land.
- There are a few such as light.

William Aldred’s Case (1610)

- A right to a view is too vague

Dyce v Hay (1865) 1 Macq 305

- General recreational purposes too vague

How easements are created

1. Express grant or reservation – must be created by deed

2. Implied grant or reservation on a sale of part
3. Prescription

The difference between grant and reservation;

Examples;

a) The transferor (Seller) grants for the benefit of the Property a right for the Transferee (Buyer) (in
common with the transferor and all other authorised persons) of way at all times and for all
reasonable purposes and with vehicles (where appropriate) overall roads and footpaths now
constructed on the estate.

b) The transferor (Seller) accepts and reserves out of the Property for the benefit of the remainder
of the Estates the right for the Transferor the owners of other plots on the estate and all other
authorised persons to use the water soil and gas pipes and the electricity and telephone cables now
laid under the property and which serve other parts of the estate.

Requirement for legal easement;

- Granted forever or for a fixed period of time

- Created by deed with correct formalities
- Easement must be protected by being registered against both titles.

Registered

- Registered land = Registered on charges register.

- Can be done on a Sale of part but can also happen at any time.
Implied grant or reservation on a sale of part

Implied easements are deemed to be legal easements.

Sellers = The law will only allow sellers to keep easements of strict necessity and common intention
easements only. If they want to keep any more rights then they shouldn’t be selling the land.

Buyers = The law will only allow buyers grant of easements of strict necessity, common intention
easements, easements under Wheeldon v Burrows 1879 and easements under s62 LPA 1925.

A and B are only for sellers, buyers have access to all 4.

A) Easements of strict necessity: Without this right, no use can be made of that land at all E.G.
no access at all.
a. Available for buyers and sellers for grant and reservation.
B) Common intention easements = Both parties intended the land to be used in a particular
way, easement will be implied.
a. Available for buyers and sellers for grant and reservation.
C) Easements under Wheeldon v Burrows. The right must be:
a. Continuous - Some degree of permanence.
b. Apparent - Something obvious on inspection to someone who knew what they were
looking for.
c. Necessary for the reasonable enjoyment of land
d. Being used as a quasi-easement by the seller for the benefit of the land being sold at
the time of the sale of part
For this to work, before the sale of part you need: unity of occupation. One peron
owning and occupying all the land
Only available to a buyer on a sale of part.
D) Easements under s62 LPA 1925 –
a. The dominant and servient land must have been in separate occupation prior to the
sale of part - Freehold owner & part of the property is let out.
Intended effect and wtf magic effect.
b. You need diversity of occupation but not for continuous and apparent quasi-
easements.
c. P&S Platt Ltd v Crouch [2004] 1P&CR 18.
i. Magic effect can take effect of quasi easement

The person claiming the easement needs permission to do it. Need diversity of occupation: need to
be occupied by different people.

- Excluding implied easements: - “This transfer does not include any easement other than
those expressly granted in this transfer and shall not be construed or operate as implying the
grant of any easement.”
Prescription

o Been happening for long time

Right acquired by long user to which the owner of the servient land has acquiesced.

- Owner of land knows about use and doesn’t do anything to stop it.
- No need for a sale of part.

Three ways to make a claim:

1. Common law prescription;

Conditions;

- The user must be “ as of right ”, nec vi (Without force), nec clam (Without secrecy), nec
precario (Without permission).
- The user must be by a freehold owner against a freehold owner.
- It must be continuous throughout the required period. (Using whenever circumstances
require/Regular)
- Common law prescription – The claim is based on the presumption right has been granted
and used since time immemorial which is 1189 (If can prove 20 years court will still presume
as impossible to prove been used since 1189)
- Presumption can still be rebutted.

2. Lost Modern Grant

- Pure fiction, if the user has been made for 20 years it is assumed a deed must have been
granted granting that right, but it has been lost.
- 20 year period of use
- Exists forever.

3. Prescription Act 1832