what is an easement
a limited proprietary right for on one landowner (dominant tenement) to make particular use of land of another owner (servient tenement).
its a right fixed to the land itself or preventing the owner of the land to use their land in a specific manner
what is a profit a pendre
a propreitary interest in land granting a right to remove something from another’s land (wood, turf, animals)
- A profit can exsist in gross (without a DT)- meaning the person benefiting does not need to own dominant land- Lord Chesterfield v Harris
what is the nature of easements
they are proprietary rights rooted in and affixed to the land, it can also survive changes in ownership or occupation.
they are potentially enforceable against third parties such as later tenants
what are examples of easements
- rights of way
- rights to light (natural light) Colls v Home
- car parking if they don’t amount to exclusive posession- Batchelor v Marlow (2003)
- right to storage- wright v macadam (1949)
what are examples of invalid easements
- rights imposing a positive burden: generally an easement cannot require the S owner to take action or incur expenditure, just prevent them from doing something or equire them to allow something to b done. So a right to supply water would fail (Rance v Elvin 1985)
- rights too vague or uncertain: right to a “good view”- William Aldred’s case (1610)
can a easement be legal or equitable? How?
Yes, either
But it depends on:
-Capacity: is the right capable of being legal or equitable? S1(2) LPA 1925 lists rights capable of being legal: easements are included
Creation: how was the right actually created? specific formalities are required to be legal, if they aren’t met it will be equitable
How long does an easement need to be granted
To be legal an easement must be granted for a period equivileant to fee simple absolute in posession or a term of years absolite.
It cannot be granted for an intermediate period, such as ‘ for A’s life’, can only ever be equitable
what is the re ellenborough park (1956) test 1)
4 part test to determine if a right is capable of being an easement
1) There must be a DT and ST who are at the time are identifiabl
what is the re ellenborough park (1956) test 2)
2) The easement must accommodate the DT- must benefit the land itself, not just the owner personally (Hill v Tupper).
- would it benefit the land of a future owner or improves the way the land can be used. some reasonable proximity between the land is necessary
- rights conferring a commercial advantage can be easements if there’s a sufficient connection to the DT (advertising sign on pub Moody v Struggles)
What is the re ellenborough park (1956) test 3)
3) The DT and ST must be in separate ownership or occupation- can’t have an easement over your own land
- if the same person owns both, the easement is extinghuised, if in common occupation (but different ownership), its susupended
what is the re ellenbororugh park (1956) test 4)
4) The right must be capable of being expressly grated by a deed (or lie in grant )
- must be definite and certain
- must be within the general nature of rights
- can’t amount to exclusive posession or seriously interfere with the ST’s reasonable use of their land** (Ouster Principle)**
- can’t impose a positive obligation on the ST owner( except for specific historical expectations like fencing which could create a quasi-easement- Crow v Wood)
how are easements created: express
1) Express creation:
- legal easement made by deed (s.52 LPA 1925, s.1 LP(MP)A 1989) and completed by registering as a registrable disposition (s27)… if not it is only equitbale
2) Equitable easements
How are easements created: Implied creation
kImplied into a deed or lease even if not expressly mentioned.
There are 4 methods:
- Necessity: if the land can’t be used without the easement (Nickerson v Barraclough- must be absolutely necessary)
- Common intention: The parties meant for the land to be used in a certain way, and the right is essential for that use (Wong v Beaumont Property Trust)
- Rule in Wheeldon v Burfows: applies when a landowner sells part of their land, the buyer gets rights previosuly used by the seller for the benefit of the land (quasi-easements) IF it’s continuous, apparant and necessary for reasonabble enjoyment.
- Sction 62 LPA 1925: on conveyance, can upgrade a license or privilege previously used.
- Section 62 lets certain informal rights (like a path or storage area) become legal easements when land is conveyed — especially if there were different occupiers before (diversity of occupation), or the right was clearly and regularly used (even by the same owner), as in Wood v Waddington (common occupation).
- As long as the right is continuous and apparent, as in Wood v Waddington 2015,
Then Section 62 LPA 1925 might automatically turn that quasi-easement into a full legal easement, even if it’s not written in the transfer deed.
A quasi-easement is a right a landowner uses over their own land, which can become a legal easement when the land is split and transferred — if the conditions in Wheeldon v Burrows or Section 62 LPA 1925 are met.
How are easements created: Prescription
3) Prescription: acquiried by long use “as of right” of at least 20 years
- without force, without secrecy and without permisson. A sign saying “private” can defeat a Nec vi Claim Winterburn v Bennett
- prescritpion easements generally result in being legal as it presumes a lost deed- Method can be by Prescription Act 1832
How are easements created: Propreitary Estoppel
can create proprietary rights (inlcuding easements) where there is assurance, reliance, detriment leading to unconsciounability
although the court has discretion when awarding a legal or equitable easement as a remedy
Enforceability of Easements on new owners (Priority for Unregistered land)
whether an easement binds a new owner of the ST depends on its legal status and if the land is registered
Unregistered land:
- Legal Easements bind anyone regardless of notice or registartion
- Equitable Easements:
Created on or after 1925: Must be registered to bind. failure makes them void Midland Bank Trust v Green (No. 1) [1981] - Created before 1926: are suject to the doctrine of notice (In unregistered land, equitable rights will only bind a new owner if they had notice of those rights when they bought the property.)
they bind a purchaser unless they are bona fide purchaser of a legal esatte for value without notice (honest and don’t know about any claims or problems with property) Kingsnorth Finance Co. Ltd v Tizard
Enforceablity of easements on registered land
- a registered purchaser for value generally takes free from rights not on the register unless they are overriding iinterests (S.29 LRA 2002)
express legal easements (post-LRA 2002): registrable dispositions (s.27). must be registered to be legal and bind purchasers
what are other legal easements and can they be overriding interets under sch 3, para 3 LRA 2002
Implied, prescriptive, express pre-LRA 2002
- overriding unless
- - not obvious on a reasonable careful inspection
- - purchaser had no actual knowledge of it
- - not excersised in the last 12 months
Are equitable easements overriding under Sch 3 para 3 and how can they be protected
NO and must be protected by registering a notice against ST, giving it priority
If not protected by a notice, an equitable easement may still be an overriding interest if the holder is in actual occupation of the servient land. However, actual occupation requires a physical presence on the land itself, beyond merely exercising the easement (Chaudhary v Yavuz)
how is an easement protected in registered land
j
depends on how it was created
express legal easement: registered as registered disposition s.27 LRA 2002. Can be protected by entering a notice on the charges register until registration complete
implied legal easements- these are overriding interets which are binding with certain conditions met under sch 3 para 3 LRA 2002. pre- 2003 express legal easements also retain overriding status
equitable easements- not overriding under sch 3 para 3 unless the holder is in actual occupation. must be protected by notice on the charges register.
How are equitable easements protected in unregistered land under the Land Charges Act 1972 after 1925
The Land Charges Act 1972 provied a limited registration scheme for certain equitable rights in unregisterd land known as land charges
- Equitable easesment created after 1925 must be registered as Class D (iii) Land Charge to bind purchasers, if not it’s not binding, even if they had notice (Estoppel might be possible Midland Bank v Green)
- Registartion is against the name owner not the land itself
this means the purchaser takes the land free of non- registered equitable easements, however the easement will still bind non- purchasers, such as someone who recieves the land as a gift or inherits under a will.
how are equitable easements protected before 1 january 1926
Equitable easements created before 1925 are excluded from registration under Land Charges Act 1972
- Doctrine of Notice protects these
Can oral agreements amount to legal easeemnts
No they are generally not enforceable, especially if they involve a transfer of land or creation of an easement.
The Law of Property (Miscellaneous Provisions) Act 1989 requires such agreements to be in writing and signed by all parties.
- but they may be enforcable under equitable easements due to propreitory estoppel Howe v Gossop 2021 EWHC 637 (Ch) it will also amount to an overriding interest (sch 3 para 2)
This law ensures certainty and protection for consumers in property transaction
Easement Questions have 3 parts (Bevan)
1) is it capable of being an easement Ellenborough Park test
2) was it cerated validy (express/ implied/ prescription)
3) Has it been correctly registration to bind thrird parties (registered/ unregistered land rules) (LRA 2002)
