Easements

• Easements


  A legal right that an individual can acquire over the land of another
• Types of easements

  • Positive (right to do something on someone's land)
  • Negative (right to stop someone from doing something on your land)
• Interests in land

  Not a contract - this means that if you sell the plot of land, the new owner will now have the right – s.62 ~Law of Property Act 1925
• In Re Ellenborough

  1. The freehold belongs to Henry Davies and Joseph Whereat, who sold off three sides of the park for a building

  2. Individual plots of land were sold, and they were sold with certain rights to use the roads and water pipes etc.

  3. An owner of the plotted land would always have the full enjoyment hereafter in common with the other persons who, such easements may be granted of the pleasure ground set out and made in front of the said plot of land

  4. Subject to the payment of a fair and just proportion of the costs, charges, and expenses of keeping in good order and condition the said pleasure ground
• The original owners had died and most of the land was sold by the trustees, they were still in charge of Ellenborough Park
• The trustees went to court after the occupants were confused as to why all this money wasn't being used for maintenance and instead their money

  1. Did the owners of the surrounding properties have an enforceable right to use the park in exchange for paying its upkeep?

  2. Should any part of the £150 per year be treated as contributing to the surrounding owners' payments for upkeep (to compensate them for any loss of amenity during the period of requisition)

  3. Should any of the payment for dilapidations be credited to the surrounding owners' contributory payments
• Re Ellenborough demonstrates the courts' recognition of rights that benefit land in a manner analogous to an easement
• Dominant tenement

  A tenement which benefits from the easement
• Servient tenement

  A tenement which accommodates the dominant tenement. i.e. which is subject to the easement
• Ackroyd v Smith reduced the scope for a potentially huge number of people to have rights over the land, thus makes the land more marketable
• It would not be difficult for those granting easements to specify their precise limits and so limit the burden
• The state has already intervened to create easement in relation to gas companies – therefore not true that there must always be a D and S tenement
• Easement


  The easement must be for the benefit of the land, rather than of benefit to a specific person
• A right in a form of an easement cannot exist solely for the purpose of recreational use (isn't this Ellenborough park? The arrangements there were contractual rights since it did not involve those who later brought the land)
• A right enjoyed by one over the land of another does not possess the status of an easement unless it accommodates and serves the dominant tenement, and is reasonably necessary for the better enjoyment of that tenement
• It is not competent to create rights unconnected the use and enjoyment of land and annex them to it so as to constitute a property in the grantee
• Easements must always be to better reasonable enjoyment of your land, to charge others to use it, does not help you to make better use for your land
• Landlord – tenant relationship can satisfy the separate people requirement
• Requirements for the right claimed to be capable of forming the subject matter of a grant

  • Must be a capable grantor
  • There must be a capable grantee
  • The right must be sufficiently definite
  • The right must fall within the general nature of the rights traditionally recognised as easements
  • The right must not impose any positive burden on the servient owner
  • The right must not deprive the servient owner of all beneficial proprietorship
• Copeland v Greenhalf: the right being claimed by Greehalf goes solely outside any normal idea of an easement. This is a claim to a joint use – he is claiming the whole benefit of the user of the strip of land. It is virtually a claim possession and if necessary to the exclusion of the owner. It deprived Copeland of all beneficial proprietorship
• London & Blenheim v Ladbrokes, Batchelor v Marlow: does the easement leave the servient owner with 'reasonable use' of the land?
• Moncrieff v Jamieson: the only public parking was on the public road, so they agreed that they could park their car on the Jamieson's property
• If your claim prevents the servient owner from expression control and possession this cannot be an easement. Easements do not give exclusive possession. Any easement will in some sense deprive the servient owner of some use of the land
• The test is whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, in control of the servient land
• Reasonable use as in Monclieff: some use of land e.g. the ability to build over or under it, put up advertising on the walls, run pipes and wires over/under
• Express grant or reservation of a right


  Must be created out of a legal estate, requires execution by deed (s52(1) Law of Property Act), and must be registered to take effect at law (s27(2)(d) Land Registration act)
• Enforceability of express easements

  Title to, and interests in, land must be registered if they are to be enforced against third parties. It creates a snapshot of the rights enjoyed by the title holder AND any other rights that burden that land. Allows purchasers to see what rights they'll be affected by
• Express creation of easements

  On registration, the benefit of the easement is included in the title register of the dominant land, and notice of the burden is entered in the title register of the servient land (s38 LRA 2002)
• If requirements for express easement are not clear (e.g. not a legal estate, not executed by deed, or failure to register), the right can be equitable and still has the potential to be binding. Notice is required to be entered into the title register of the servient land (ss.32/34 LRA 2002)
• How to create an expressed easement

  • Agreement in writing
  • Grantor's capacity
  • Intent
  • Registration
• Implied easements


  In absence of express words, an easement can be implied into a deed of transferee. Legitimisation of acts over lands over a long period of time, turning factual acts into legal rights
• Implied easements can't be registered because they arise informally. This is a major exception to the principle is the need to be registered. Some rights are enforceable without it and are considered to have "overriding" status
• Overriding interests

  Bind a purchaser without registration, so long as Sch3 LRA 2002 criteria/condition are met
• Conditions for an easement to be an overriding interest

  • Not within the actual knowledge of the purchaser
  • Would not have been obvious on a reasonably careful inspection of the land
  • Unless the person entitled to the easement proves that it has been exercised within one year of the date of the sale
• Types of implied easements

  • Doctrine of necessity
  • Doctrine by wheeldon v Burrows
  • Doctrine of s62 Law of Property act
  • common intention
• Registered under Part 1 of the Commons Act 2006, which at the time of the disposition—(a)is not within the actual knowledge of the person to whom the disposition is made, and(b)would not have been obvious on a reasonably careful inspection of the land over which the easement or profit is exercisable.
• The exception in sub-paragraph (1) does not apply if the person entitled to the easement or profit proves that it has been exercised in the period of one year ending with the day of the disposition.
• A legal easement which at the time of the [sale]—(a) is not within the actual knowledge of the person [of the purchaser], and(b) would not have been obvious on a reasonably careful inspection of the [servient] land [will NOT override]
• UNLESS the person entitled to the easement proves that it has been exercised within one year of the date of the sale.
• Implied creation

  There are three implied acquisitions:The doctrine of necessity, The doctrine by common intention, The doctrine of Wheeldon v Burrows, The Doctrine in LPA 1925 s62