Understanding easements is crucial for property owners, developers and legal professionals as these rights can significantly impact land value and usage. This article delves into the intricacies of easements, exploring their definition, conditions and legal implications ensuring you grasp this essential concept in land law.
By Melody Phiri and Mwaba Phiri
INTRODUCTION
What is an easement?
An easement gives a person the right to use land of another in particular way also known as a positive easement or to prevent another from using land in particular way also known as a negative easement. It is right in land which does not give its owner physical exclusive possession of the land, but it is a right in rem capable of binding the land over which it is serviceable. The benefit of an easement must be attached to land. The nature of land means that its value may be increased or decreased by such a right. The land which has the benefit of the easement is known as the dominant land (dominant tenement) and the land which is burdened by it is known as the servient land (servient tenement). Easements are rather like elephants: easy to recognize but very difficult to define[1].
ELEMENTS AND CONDITIONS OF EASEMENTS
In Re Ellenborough Park[2], Lord Evershed MR established that for there to be an easement, the four requisites must occur.
1) There must be a dominant and servient tenement.
For an easement to exist, there must be two separate pieces of land. For instance, if A grants B a right of way over A’s land, if B owns a neighbouring piece of land it suffice to be an easement. A’s property is the dominant tenement while B’s land the servient tenement. However, if A owns no land in the premise, A will merely have a licence over B’s land. This is evident in Pugh v Savage[3], Plug, the owner of a farm with fields B and C accidentally obstructed a pathway with hedge injunction and damages for trespass. Field A was accessed from the high way and Pugh denied the private right of way for vehicles to gain access. Field B and C were leased to Savage who was informed upon taking the path. The court found evidence that the owner of field C had the lease and entailed to a private right of way over field A. When Savage crossed field A to gain access to field B, Plug sought an dominant tenement and became a tenement of the land. The grant of tenancy would not ruin the presumption of a grant or grounds for a claim under the Prescription Act 1832[4]. The plea was dismissed and Savage was entitled to a right of way over the land.
2) An easement must accommodate the dominant tenement.
In Re Ellenborough Park, the court keep to the fiction that at some point in the past every easement was granted. The right must be capable of forming the subject matter of a grant. The most obvious examples of easements are a right of way, a right to light and a right of something which is to the personal advantage of the current owner of the property. Moody v. Steggles[5] someone could both own own and occupy the dominant and servient tenement because the right to put an advertisement on a neighbors property advertising a pub was held to be an easement.
3) The owners of the land must be different people.
An easement by definition is a right over someone’s land. It is therefore impossible that someone could own and occupy both the dominant tenement and the servient tenement. However, it is possible that a tenant could acquire an easement over the land lords house.
4) The right must be capable of forming the subject matter of a grant.
It is commonly said that all easements ‘lie in grant’, even though it may not fundamentally be the case. The courts keep to the fiction that at some point in the past, every easement was granted from one person to another in the form of a deed. This myth requires certain conditions upon the kind of right that can be considered easements:
1) The right must be definite.
2) There must be a competent grantor and grantee.
3) The right must be within the general nature of rights traditionally recognized as easements.
The most obvious examples of easements are a right of way, a right to light and right of support of a building. While the less obvious examples may include:
*A right to use a neighbour airfield - Dowty Boulton Paul Ltd v Wolverhampton corporation (No 2)[6], where the right of owners of a factory to use a neighbouring airfield was held to be capable of being an easement.
*A right to use a neighbor's lavatory - Miller v Emcer Products[7], the right of occupants of one flat to use the toilet in a neighbouring flat.The Court ruled that the right to use a second floor lavatory was an easement attached to the ground floor lease and the implied agreement could not apply to it. However, the second floor tenants locked the lavatory and refused to allow the ground floor tenants to use it, arguing that it breached the implied agreement for quiet enjoyment. The implied agreement was held to have not been applicable and therefore, there was no breach of the express agreement. The Court was influenced by the right to use a neighbor's kitchen for washing in Heywood v Mallalieu.[8] Due to rapid changes in society including advances in new technologies, it may be necessary to create new easements or at least for the courts to consider whether new rights are capable of being recognized as such using the tests in Re Ellenborough Park.
In addition to the rules in Re Ellenborough Park, in considering whether a new easement has been created, courts are influenced by the following:
* That the right claimed as an easement must not amount to a grant of the whole servient land. In Gringsby v. Melville[9], where the Court applied the holding in Copeland v. Greenhalf and held that the right to store goods in a cellar cannot be an easement because it was excessive and virtually amounted to an exclusive right.
* That the courts will not easily create new negative easements but rather have the effect of restricting development of the servient land. A classic example can be seenin Phipps v. Pears[10], the Courts refused to accept as an easement the alleged right of one building to be protected from weather by another building.
* That the owner should not generally be required to spend money on the upkeep of the easement. However, the exception to this is apparently an easement of fencing. Crow v Wood[11], revolved around a sheep moor with adjoining farms in common ownership with farms leased to the purchaser. The right to have one's neighbor keep up fences is a right that lay in grant and is in the nature of an easement. The right passed on the conveyance to the purchasers and so to D, who put an obligation on C to fence her land. However, some farms were sold to C with the right to moor sheep and agreement who didn't exercise the right to moor and didn't keep their fences in repair. D claimed that C was under a duty by implied grant a common law erections, fixtures, easements, rights and advantages whatsoever, appertaining or held. C voluntarily fenced her walls for 10 years because she couldn't be enforced against C because the common owner had not reserved any such grant. The present circumstances furthermore give rise to a right against them. The right to compel another to decide now is implied in every conveyance and the obligation on others to maintain their walls is an advantage. The right to have a fence kept in repair is capable of being passed under Section 62, Law of Property Act[12] by express or implied grant, but whether it's an easement or not doesn't need to be granted by law.
CREATION OF EASEMENTS
A legal easement may be created by deed in accordance with Section 52 of the LPA[13]. either where someone grants rights over land to a neighbour or by reservation where a person selling part of the land does so on terms that they retain an easement restrictively by reason of the principle that the vendor may not derogate from her grant. In order be a legal easement under Section 1 (2) (a) of the LPA[14], it must be granted or reserved for a term equivalent to a fee simple (freehold) or for a term of years (a specific period)If a person tries to create a legal easements but fails to comply with the necessary requirements in Section 1 of the Law of Property (Miscellaneous Provisions) Act[15] which lays down the requirements of a deed, then the easement may take effect in equity and in accordance with the principle in Walsh v Lonsdale[16] provided there is compliance with the requirements for a valid contract relating to land in Section 2 of the Law of Property (Miscellaneous Provisions) Act[17]. According to Section 27(2)(d) of the Land Registration Act[18], all new expressly granted legal easements in registered land are registrable dispositions and must be registered at the Land Registry (with an entry on the Property Register of the land which is to be benefit and a notice on the Charges Register of the land is to be burdened). An equitable easement should be protected by a notice on the Charges Register of the burdened land as per Section 32 of the land of the Land Registration Act.
Implide Acquisition
In the absence of express creation, courts may imply an easement.
Easements of Necessity.
An easement of necessity is exactly what the name suggests. The courts will imply into the deed of purchase of a land an easement in favor of that land because otherwise it would be incapable of use or rendered worthless. For instance, a landlocked land. If A sells land to C and the only way out of C’s land is across A’s land, the courts will imply that A granted C a right of way across his or her property even though nothing to that effect was expressly mentioned in the document of sale. However, courts are reluctant in implying easements of necessity. Lord Oliver in Manjang v. Dammeh[19] stated that three things ought to be established:... first, a common owner of legal estate in two plots of land, secondly, that access between one of those plots and the public highway can be obtained only through the other plot. Thirdly, a disposition of one of the plots without any specific grant or reservation of a right of access .
Common Intention
Courts will imply grants of easements in order to fulfil the common intention of the parties. Pwllbach Colliery Co Ltd v. Woodman[20], it was stated that the law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties with reference to the manner or purposes in and for which the property was granted or some land retained by the grantor is to be used” Stafford v. Lee[21], where S purchased a plot of land from L, both parties knew that it was to be developed for residential purposes. S then obtained planning permission to build a house and claimed an easement of common intention over L’s drive. According to Nourse LJ, requirements for an easement based on common intention which the grantee must surmount are two. “He must establish a common intention as to some definite and particular user, then he must show that the easements he claims are necessary to give effect to it”.
The rule in Wheeldon v. Burrows[22]
This doctrine comes from the idea that a ‘a grantor may not derogate from his grant’. It operates where land which is previously in ownership of one person is subdivided and sold off. The rule arising from the case states as follows:... In a grant of land, there must be implied in favor of a grantee those rights in the nature of easements which are continuous, apparent and necessary to the reasonable enjoyment of the property granted which have been and are at the time of grant, used by the grantor for the benefit of the part granted.The rule is best explained by way of example. If A owns a large estate, he may over the years do many things on the property. For instance, parking vehicles on part of the property or using a short cut across the land in order to get to the road more quickly that using the permanent driveway. All these things may be capable of being easements, but if the land is all in the hands of one person in this case A, then one of the conditions of an easement is missing i.e. there is dominant tenement or servient tenement. However, the courts have termed such things done by an owner on his or her property as ‘quasi-easements’. The idea of the doctrine in Wheeldon v. Burrows is that if A sells part of the land to B, these quasi-easements may become easements for B’s benefit.
The exceptions are that:
*The quasi-easement is ‘continuous and apparent’ evident in the case of Wood v Waddington, in case of right of way, there must be sufficient physical signs of the continued use of the claimed easement prior to transfer although this does not require a made road.
*The easement must be ‘necessary to reasonable enjoyment’ of the land.
*The right must be in use both previously and at the time of sale for the benefit of the part of the land sold.
Easements arising under Section 62 LPA 1925
Another form of implied grant is made possible by the operation of the word ‘saving’ provision in 62 of the LPA 1925[23]. It is implied into every conveyance and has the effect of passing to any grantee of the land the benefit of all existing easements, privileges and rights which relate to that land. However, the courts have decided that Section 62 goes further and can make new easements out of certain rights and privileges which existed at the date of the conveyance. Anyone selling land needs to be careful and remember that selling can include the creation of a leasehold estate because when Section 62 is made active through a conveyance/transfer something which the vendor allowed another person to do on his property simply by permission by way of licence can be turned into a legal easement. The operation of Section 62 is best explained by way of example in Goldberg v Edward [24] the defendant leased an annex to plaintiff with an express clause that visitors to plaintiff could gain access through the yard, whilst this first lease was still in force the defendant also gave plaintiff permission for his visitors to come through the hall. The defendant and plaintiff later signed a second lease that said nothing about the hallway. It was held that Plaintiff’s claim succeeded under Section 62 although it failed under Wheeldon since the hall was convenient, but not necessary for reasonable enjoyment.What is important is that Section 62 will only operate generally where the dominant tenement and the servient tenement are in separate occupation at the time of the conveyance which activates Section 62. However, in Platt v Crouch[25] a controversial approach to Section 62 was taken, that a right such 62 even where there has been no diversity of occupation provided that the right of way was ‘continuous and apparent’. This approach was confirmed by the recent Court Appeal in Wood v Waddington. Thus Section 62 has the result of ‘expressly’ granting any quasi-easements where either there was prior diversity of occupation or the quasi-easement was continuous and apparent. Where a deed of conveyance is used there is therefore no reason to consider the rule in Wheeldon v Burrows. Section 62 will not apply if there is a contrary intention in the deed. Lewison LJ explained this in Wood v. Waddington, stating that the evidence has to show clear intention to exclude the operation of Section 62.
PROTECTION OF IMPLIED EASEMENTS
Legal easements that are not expressly granted are interests that override (unless and until registered) LRA 2002, Scheduled 3 Paragraph 326 under which an interest will be binding on the purchaser if:
-The purchaser actually knows of the easement
-The easement is obvious from a reasonably careful inspection of the land.
-The easement has been exercised within a period of one year before the disposition
Prescription
There are some complex rules which allow the user of a right over someone’s land for a long period of to acquire an easement by presumed grant. This is called prescription of which there are three kinds:
*Common law
*Lost modern grant
*Under the Prescription Act 1832
It is necessary to show continuous and long user as of right without secrecy or force or permission for a period of at least 20 years.
Easements by estoppel
Another way for an easement to be created is by the doctrine of estoppel. Crabb v. Arun District Council[27], involved the doctrine of proprietary estoppel, which established that there is no requirement for both parties to provide consideration for the enforcement of agreements related to the acquisition of rights over land. In this case, Mr. Victor Crabb purchased 2 acres of land in Pagham near Bognor Regis and Arun District Council owned 3.5 acres separated by Mill Park Road. Despite assurances, Crabb sold part of his land assuming continued access at both points. When Arun District Council demanded £3,000 for access at point B, Crabb sued claiming he had been assured the gates would remain open. The trial judge found no formal assurance and deemed the potential agreement unenforceable due to lack of consideration. However, Lord Denning held that proprietary estoppel could enforce the promise asserting that equity could arise in the absence of a binding contract, especially in land related matters. The court protected new rights and interests created by estoppel, acknowledging its basis in equity to mitigate strict legal rights.
REMEDIES FOR INFRINGEMENT OF EASEMENTS
When an easement is infringed, for example the servient owner has blocked a right of way there a number of remedies available:
* Abatement (self help)
* Injunction
* Damages
* Declaration
Raymond v. Young[28] is a recent case where the interference with an easement has been substantial and obstructive of its reasonable use and remedies of damages and injunction were available. The facts of the case were that the defendants Mr. and Mrs. Young, appealed a 155,000 damages award to the plaintiffs, Mr. and Mrs. Raymond, for the diminished value of their property due to harassment and nuisance. The plaintiffs owned Lin Cragg Farm in Blawith Cumbria, while the defendants reside in a cottage with their four children. The Recorder found that the defendants and their family had been harassing, trespassing and nuisanseing the plaintiffs for almost 40 years, stemming from Mr. Young's resentment towards the acquisition and use of the farm as a weekend home. The plaintiffs attempted to sell the farm by auction with a reserve of 935,000 for all three lots. The loss in value due to the dispute was estimated at 155,000. The Recorder was correct in awarding damages for the property's diminished value but wrong in awarding damages for loss of distress.
ENDING OF EASEMENTS
Easements may cease to exist in a number of ways:
*Unity of Seisin (unity of possession and ownership of dominant and servient tenement).
*Release (by deed and cancellation of any relevant entries at Land Registry).
*Abandonment(there must be an intention to abandon, however, mere non use is not enough. In Benn v. Hardinge[12], a right of way was not used for 175 years because an alternative path was available. When the path was waterlogged, the owners of the easement were entitled to use the right of way again. It was not treated as abandoned. The facts of the case simply imply that the alternative water supply was more convenient but since now it is unavailable, the right of way can be used as an easement again.
REFERENCES
Case Law
Re Ellenborough Park [1956] Ch 131.
Pwllbach Colliery Co Ltd v Woodman [1915] A.C 634.
Stafford v Lee [1992] 65 P & CR 172
Manjang v. Dammeh [1991] 61 P&CR 194.Walsh v Lonsdale [1882] 21 Ch. D. 9.
Miller v Emcer Products [1956] 2 WLR 267.
Crow v Wood [1971] 1 QB 77.
Wheeldon v Burrows [1879] 12 Ch D 31.
Platt v Crouch [2003] EWCA Civ 1110. Goldberg v Edward [1950] Ch 247.
Crabb v Arun District Council [1976] Ch 179.
Gringsby v Melville [1972] 1 WLR 355.
Phipps v Pears [1965] 1 QB 76].
Raymond v Young [2015] EWCA Civ 456.
Benn v. Hardinge [1993] 66P & CR 246.
Statutory Provisions
Land Registrations Act, 2002.
Schedule 3.Law of Property Act, 1925.
Law of Property (Miscellaneous Provisions) Act 1989.
Books
Mackenzie, J A, and M Philips. Textbook on Land Law. 14th ed. Oxford: Oxford University Press, 2014
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