Land Law: Easments

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What is a proprietary right?

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Interests in land (legal or equitable) that enjoy the quality of enduring through different ownerships of land. Such rights must be definable, identifiable and have a degree of permanence stability (National Provincial Bank v Ainsworth). In contradistinction to a personal right (e.g. a licence), the hallmark of a property right it its capacity to bind third parties.

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Licences

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A licence is mere permission to be on the land of someone else and, as such, prevents what would otherwise be a trespass. Licences can be bare/gratuitous or contractual. There are no formalities associated with its creation.

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Licences coupled with equity

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As demonstrated in National Provincial Bank v Hastings, this may confer an irrevocable right over property that is binding on third parties. Equity may restrain the revocation of the licence.

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Easements

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Easements are nowhere defined in English law. Nevertheless, it may be said that an easement is an incorporeal right annexed to the land to use, or to restrict the use of, the land of another. Easements can be positive (and usually are), that is, a right to do something on another's land or negative, that is, restricting the landowner's ability to deal with his/her land.

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The principles in Re Ellenborough Park

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-There must be both a dominant and a servient tenement

-The right must accommodate/benefit the dominant tenement

- The respective tenements must be owned and occupied by different persons

- The right must be capable of forming the subject matter of a grant.

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Distinguishing between exclusive use and exclusionary use

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The element point is that an easement represents a diminution of a servient owner's rights, but does not mark a deprivation of those rights. Hence, if the claim is tantamount to sole or joint ownership of the whole or part of the servient land, the conventional understanding is that it cannot be an incorporeal rights. It will, instead, be regarded as the assertion of a claim to a corporeal hereditament.

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Law Commission observation

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The difficulty is, an easement or profit is an interest in land, not an estate. If what the dominant owner can do on the servient land actually amounts to an ownership right- regardless of the words used- then it cannot be an easement.

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Creation of easements: legal

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There are two formal requirements for a legal easement to exist, first it must be granted for a period equating with the freehold or for a term of years (s.1 (2) (a) LPA). Second, it must be granted by deed (s.52 (1) LPA).

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Creation of easements: equitable

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These are easements that do not comply with the duration requirement and/or are created informally.

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Modes of creation

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a) Statute
b) Express grant or reservation (no special words are needed as long as the intention is made clear).
c) Implied grant and reservation
d) Prescription

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Implied grants

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In favour of grantee, easements are implied more readily than with reservations. The Law Commission has recommended that in determining whether an easement should be implied, it should not matter whether the easement would take effect by grant or by reservation.

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Easements of necessity

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As the Law Commission noted of easements of necessity at [3.13], “Whether the
right claimed is essential for the use of the land granted or retained is a question
of whether the land can be used at all without the implied grant or reservation.
Claims are only successful where the land is ‘absolutely inaccessible or useless’
without the easement.” The Commission added at 3.14, “So, for example, land
will have to be truly landlocked for an easement of necessity to be implied so as
to create an access; it will not be implied merely because it makes it more
convenient to use the land.” In Walby v Walby (2012), Morgan J, emphasised
that the test for necessity was strict and that the facts must be such that the land
retained cannot be used at all without the implication of an easement. There the
absence of a drainage easement did not prevent the retained land being used at
all and, accordingly, there could be no easement of necessity.

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The rule in Wheeldon v Burrows

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In short, the rule is that, upon the grant of part of a tenement, it will be implied that the buyer will acquire all quasi-easements over the land retained by the vendor which are:
- Continuous and apparent
- Necessary for the reasonable enjoyment of the property
- Had been enjoyed by the vendor up until the time of the grant for the benefit of the part sold off.

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Implied reservations

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The normal rule is that no easements will be implied in favour of a grantor. As Neuberger J explained in Holaw Ltd v Stockton, "it is much more difficult to imply a reservation or a right of way in favour of the vendor. That is because an implied reservation in favour of the vendor over the land which he sells is, on
the face of it, a derogation from grant”. As Morgan J. put it in Walby v Walby,
“The implication of a grant of an easement may be appropriate to enable the
grantee to enjoy that which has been expressly granted. Conversely, an implied
reservation of an interest, in favour of the grantor of the land and adverse to the
grantee of the land, may well contradict the principle that the grantor should not
derogate from his grant.” Accordingly, if I want to reserve an easement over Blue
Waters I am expected to do that expressly: Peckham v Ellison; Wheeldon v Burrows

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Exceptions

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The exceptions to this are easements of necessity (i.e. land locked close
situations) and easements necessary to give effect to the common intentions of
the parties: Holaw (470) Ltd v Stockton. As regards the latter, it must be shown
that the facts are not reasonably consistent with any explanation other than that
such a reservation was intended. As Morgan J. added in Walby v Walby (2012),
“It does not suffice to show that the facts are simply consistent with the
implication of the reservation of an easement.