An Easement is a right to use somebody else’s land. There are several kinds of Easements that exist, which can either be positive or negative Easements. The most common types of Easement are a right of way over somebody’s land, a right to park on somebody’s land , the rights to drainage and light.
There are always at least two pieces of land involved, which must be owned by different people. The land that has the burden of the right is referred to as the servient tenement. The land that benefits from the right is known as the dominant tenement.
As I stated earlier, Easements are capable of being positive or negative. A positive Easement is one which allows the owner of the dominant tenement to use the servient land in some way. This could be walking across a pathway to access your garden. A negative Easement works to prevent the servient land owner from using that land in a specific way. Examples of this Easement are very uncommon, but they do exist in the forms of a right to light and the easement of support, which deals with the land beneath a building.
The courts have actually prohibited the creation of any new negative Easements (Phipps v Pears ). The courts are not restricted to creating a new type of positive Easement, but they must be similar or a development of existing easements established by case law. (Dyce v Lady James Hay (1852) 1 Macq 305)
What Rights are capable of being an Easement?
The courts have established a test do determine whether the right is question is capable of becoming an Easement.
Re Ellenborough Park  3 All ER 667 – Court of Appeal adopted definition in Cheshire’s Modern Real Property (7th edn):
- There must be a dominant and a servient tenement – There must be a dominant and servient land
- An easement must accommodate the dominant tenement – The right must be for the genuine use and enjoyment of the land, and not purely for the personal benefit of the person using it.
The Case precedent is Hill v Tupper (1863) 2 H&C 121 – A company leased some land adjoining a canal to Hill. This gave Hill the right to use the canal for boat trips. The owner of a nearby pub decided to rent out fishing boats on the canal. Hill sued the Pub owner for interfering with his property rights . The courts held that the Hill’s rights in the land could not form as easement because they did nothing more than confer a personal benefit onto himself and his business.
The principle in this case is that the right must accommodate the dominant tenement, which means to applying this case shows that personal rights conferred upon a property owner will not be sufficient to create an easement.
Moody v Steggles (1879) 122 ChD 261 – This case concerned the right to hang a sign on neighbouring land, which pointed to a Pub. The courts held that this was a validly created easement. To apply this case contrast with Hill v Tupper to show whether the right will benefit the land or just be a personal right.
Geographic Location – In order for the dominant tenement to be accommodated, it must be sufficiently close to the servient land (Bailey v Stephens (1862) 12 CB 91). This doesn’t mean that the land must be adjacent (Pugh v Savage  2 QB 373.) The reason there must be geographic proximity is because the right then becomes a personal one, rather than a right that is for the benefit of the land.
- Dominant and servient owners must be different persons. – This is a self explanatory requirement. You cannot have a right that amounts to an easement if one person owns all of land. The land must be owned by different people.
- A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant – This requirement essentially means that the right must be capable of being created by deed. The reason for this is to ensure that the right is sufficiently certain because it can be reduced to writing. This requirement can be reduced into 5 separate categories:
- The person granting the easement has the legal capacity to grant it.
- The right relates to the use and beenfi of a specific piece of land .
- The right is not too vague – William Aldred’s Case (1610) 9 co Rep 57b – In this case the claimant argued his neighbours building was interfering with his right to a view. The courts held that a right to view is too vague, which means it cannot be an easement. Browne v Flower  1 Ch 219 – A right of privacy is too vague to create an easement.
- The easement must not require the burdened land to spend money – Regis Property Co Ltd v Redman  2 QB 612 – The landlord’s tenant attempted to claim the landlord had an easement to supply hot water to their property. The court held that as this required the landlord to spend money, it could not be an easement.
- Similarity to existing forms of easement – The right in question must be similar to those already established by case law (Dyce v Lady Hay)
The Creation of Easements
Easements can be created by way of grant or reservation either expressly, impliedly or through prescription.
Grants and Reservations
A grant is where someone gives a right over their own land to another person. A reservation is where someone sells a part of their land to a third party, but they retain rights over the sold land to benefit the land that has been sold to the third party.
A legal easement can be created expressly by deed – The Law of Property Act 1925 S52. However, it must be for a term equivalent to the freehold LPA S1(1) or for a specified term LPA S1(2). If the easement does not specify the period of time or the deed is created incorrectly then the easement will not be legal, only equitable.
If a deed is not used as required, the intended legal easement may operate as a contract so long as it is in writing and complies with the requirements of The Law of Property Miscellaneous Provisions Act 1989 S2. If the right is granted without writing, then it is likely to operate as a license only, which can be revoked at any time.
If the easement is equitable, which can happen if the easement is not granted by deed or if the servient tenement is an equitable interest in the land. An equitable easement must be registered on the charges register of the register of title because otherwise it will lose priority to a subsequent purchaser of land (Land Registration Act 200 S32)
There are two ways in which an easement can be impliedly reserved into a transfer:
- Common Intention
Reservations of Necessity
An easement will only be reserved through necessity if the land would be completely unusable without the easement. Landlocked close’s are the most common cause of a reservation of necessity because part of the land is sold, which usually leaves no access to the highway. Reservation will be implied if the person selling the land has been foolish and not left a way to reach a highway.
Necessity is constructed in very strict terms; if there is an impractical way of accessing the land the courts will not imply an easement. (Titchmarsh v Royston Water Co (1900) 81 LT 673).
Reservations by Common Intention
Easements can be reserved on the basis of common intention, essentially it was in the mind of both parties at the time that the easement was created, based on the intended use of the land.
Jones V Prtichard [1908-1910] All ER Rep 80
There are often situations where nothing relating to agreed upon easements exist in writing. In these instances an easement may be implied by one of four methods:
- Common Intention
- The rule in Wheeldon v Burrows
- S62 of The Law of Property Act
The courts will imply an easement into the deed of purchase to a property where the benefit of the easement is required. This would happen if the land would be worthless and incapable of being used without an easement. An example of this would be a single driveway that accesses two properties. The courts are not generous in this rules application, which means if there is alternative means to access the property your claim will be defeated; it does not Katter if the access isn’t ideal.
MRA Engineering Ltd v Trimster Co Ltd  56 P&CR 1 – In this case there was an alternative way to access the property via a public footpath. This was enough to defeat a claim that they needed an easement over their neighbours driveway. The courts ruled this way despite the footpath failing to give vehicular access, which demonstrates the courts stringent use of this rule.
Manjang v Dammeh  61 P&CR 194 – A piece of land was found to not be landlocked because a public highway adjoined to the land. The public highway happened to be a river, but despite the added inconvenience the court still held that the land was not landlocked and the claim for an easement for necessity was defeated. The fact that the property could be accessed without the need for the easement was enough.
The courts will imply an easement into the purchase deed where they believe it was the common intention of both parties that the easement would’ve been included.
Jones v Pritchard  1 Ch 630 – Two semi-detached houses shared chimneys. These were held to be capable of being used by both parties because of an easement created by common intention.
The purposed use of the property is paramount when the courts make a decision as to whether the an easement of common intention is to be implied.
Wong v Beaumont Properties Trust Ltd  1 QB 173 – A basement property was let out as a restaurant. They were required to install ventilation to the property in order to elimintate cooking smells by both public regulations and their own lease. The only way in which they could install these ventilation systems was on the side of the building retained by the landlord. An easement of common intention was implied because it was the common intention that the building would be let as a restaurant.
Common intention requires that the property is let or sold for a particular purpose, which would be impossible without the benefit of the easement being implied.
Wheeldon v Burrows
The rule outlined in Wheeldon v Burrows has the affect of changing quasi-easements into easements. A Quasi-Easement is a use of land that would become an easement is it was owned separately from the benefitting landowner.
Essentially, when a part of the land is sold off the rule will work in the buyers favour to imply an easement. This would happen if somebody sold the house, but retained the adjoining land.
The rule in Wheeldon v Burrows will only imply the grant of an easement on the sale of a property, it cannot be used to imply reservation of an easement in favour of the seller.
For the rule to be applied the quasi – easement must be:
- The right must be continuous and apparent.
- The right is necessary for the reasonable enjoyment of the land sold.
- The right was in use both at the time of the sale and immediately prior to it.
The Land Registration Act 1925 S62
S62 works to upgrade a license given in a lease to a fully fledged easement from the landowner to the tenant. The upgrade happens after the tenants are either sold the land or when their lease renews.
Wright v Macadam (1949) 2 KB 744 – A landlord allowed their tenant to use a coal shed on their property. The lease did not mention using the shed, but when the lease renewed the landlord attempted to claim extra rent for the usage of the shed. S62 had converted this license into an easement when the lease renewed.
This may seem like a fairly uncertain outcome in some instances, which is why you can expressly exclude the provisions of S62 from the sale of land. In order to do this, you must expressly exclude it in the writing of the contract for sale.
- Necessity – Will only be implied where the land cannot otherwise be used
- Common Intention – Implied where the intended use was the common intention of both parties.
- Wheeldon v Burrows – Converts Quasi Easements into easements, where the seller retains the burdened land
- S62 LPA – Converts a license into an easement when tenanted land is either sold or the lease renewed.
Easements can also be established through continuous use over a long period of time. There are three components to prescription:
- The easement must be over freehold land.
- Must be at least 20 years of uninterrupted use.
- The use must be ‘as of right’
Hollins v Verney (1884) 13 QBD 304 – A right of way was used just three times in the space of 35 years. The court held that this was not continuous and regular use of the land, therefore the right was not prescribed.
User as of Right
There is a very fancy Latin terms used to describe what ‘user as of right’ means, but in English it simply means without secrecy, without force and without permission. In other words you cannot sneak onto somebodies land and use the right because it will not amount to acquiring the rights through prescription. If somebody is forceful and violent the right will not be prescribed, and if somebody gives you permission they are offering a license.
Barney v BP Truckstops Ltd  CLV 1854 – The defendant claimed an easement of drainage through prescription, but it was found to not be acquired. The reason for this as because although the usage was not dishonestly hidden, it was still unknown to the landowner.
S Dalton v Angus and Co [1881 – 1885] All ER Rep 1 – This concerned a building and an easement of support. The neighbours building had supported the claimants for a period longer than 20 years. There were no threats or force exerted.
Green v Ashco Horticultural Ltd  1 WLR 899 – The claimant claimed a right to park on the defendants land, but he always moved his vehicle when asked to do so. The right was not prescribed because it was with the landowners permission.
Common Law Prescription
The common law will prescribe an easement if it has been used since time immemorial, which essentially means the easement has been used since 1189. There is no need to give proof that the easement has been enjoyed since 1189, but it is easily rebutted because if the claim was on a building that didn’t exist in 1189 then the claim automatically fails. There only needs to be over 20 years of uninterrupted and continuous use.
Lost Modern Grant
Lost modern grant is essentially the presumption that the relevant legal documents for the creation of an easement have been lost. LMG presumes that an easement was validly created if the right has been enjoyed at some point for over 20 years. The claimant will only have to prove that for some point in time it was used for the 20 uninterrupted years (Tehidy Minerals v Norman  2 QB 528).
Before this doctrine can be applied, the common law prescription rules must be tested.
Prescription Act 1832
Under S2 of this act, the law provides two types of prescription – either 20 years uninterrupted use or 40 years uninterrupted use. The main difference is that 40 years uninterputed use requires that when testing ‘as of right’ that without permission can only be rebutted by written consent.
An easement will be presumed if it has 20 years uninterrupted and continuous use and:
- The user is ‘as of right’
- The user is 18 years old or older
- There has been no interruption for a year or more.
An easement will be presumed if it has 40 years uninterrupted and continuous use and:
- The user is ‘as of right’ (written consent is the only means to defeat without consent maxim.
- The burdened and cannot be held by a tenant for life or a tenant exceeding a term of three years.
- No interruption of the usage for a year or more.
That’s a wrap on easements folks, apologies for such a lengthy post, but there is a lot of content to cover!