What is an Easement?
Right to do something on another’s land
What is a profit a prendre
Right to take something from another’s land
Re Ellenborough Park - overview
Is a right capable of being an easement?
- ) There must be a dominant and a servient tenement
- ) The easement must accommodate the dominant tenement
- ) The dominant and servient tenements must be owned or occupied by different people
- ) The easement must be capable of forming the subject matter of a grant
1.) There must be a dominant and a servient tenement
Dominant tenement - Land that takes the benefit of the right
Servient tenement - Land that takes the burden of the right
Wall v Collins
Right cannot be in gross must be in appurtenant to land
2.) The easement must accommodate the dominant tenement
The right must confer an advantage on the dominant land, not just a personal advantage
Hill v Tupper
-Pleasure boats on a canal
NOT an easement as it benefitted business, not the land
3.) The dominant and servient tenements must be owned or occupied by different people
A person cannot have an easement over his own land
Two tenements must not be owned and occupied by the same person - see Wheeldon
Wheeldon v Burrows
If the owner owns dominant and servient land, a quasi-easement is formed which gives the potential for an easement to arise (if one of the properties is sold in the future)
Quasi-easement must be:
1.) Continuous and apparent
2.) Necessary for the reasonable enjoyment of the land sold
3.) Used at the time of the grant by owner
Wright v Macadam
General right for easement of storage
4.) The easement must be capable of forming the subject matter of a grant
There must be a capable grantor and grantee
The right must be within the nature of rights capable of being an easement - Moncrieff v Jamieson
Moncrieff v Jamieson
Easement must not interfere such that the owner no longer retain possession of the land
Express easements/ profits
An express legal easement/ profit must be:
- Attached to and therefore equivalent to a fee simple or term of years absolute LPA s1
- created by statute, by long use or by deed
- Expressly created easements must be registered 2002 LRA Sch 2 Para 7
Enforceability of easements: purchaser of servient land
Registered Land:
- should be protected by registration and will, therefore, be a legal interest
- Cannot be an overriding interest
Unregistered Land:
-Whether legal or equitable, interest overrides
Enforceability of easements: purchaser of dominant land
The benefit attaches to the land so automatically passes to the dominant owner
What are the three ways an easement can be created?
- ) Express grant or reservation
- ) Implied grant or reservation
- ) Prescription
Express grant:
- Easement/profit created by the express words of the deed or registered disposition
- If grant is by deed -> legal, otherwise equitable
Express reservation:
-Express reservation by the potential dominant owner over the land he has sold, for the benefit of the retained land
Implied grant or reservation:
- ) Necessity
- ) Common intention
- ) Implied under s62 Law of Property 1925
- ) Rule in Wheeldon v Burrows
1.) Necessity
Land which is landlocked - Nickerson v Barraclough
Nickerson v Barraclough
“Unless some way implied a parcel of land will be inaccessible” - Implied grant for land not to be land-locked
International Proprietary v Merton
Obiter: If locked by third parties, necessity applies too
2.) Common intention
Woodman:
“it is essential that the parties should intend the subject matter of the grant be used in some definite or particular manner”
Easements by prescription:
- ) Common law presumption of long user
- ) Under the fiction of lost modern grant
- ) Under Prescription Act 1832
