Easements
Definition: An easement is a right attached to one piece of land to...
A is the legal owner of a house. B owns a strip of land. A has an easement to walk across B's land to reach the public road. A's land is the dominant land. B's land is the servient land.
A owns a property in a residential development. B owns the car parking area in the development. A has an easement to part a car in the car parking area. A's land is the dominant land. B's land is the servient land.
The land which benefits from the easement is known as the 'dominant land/tenement', and the land over which the easement is exercised is known as the 'servient land/tenement'. An easement can be a legal interest if it is 'in possession'. It will last as long as a fee simple absolute or a term of years absolute, under Law of Property Act 1925 s.1(2)(a) (interests that can be legal and equitable are under s1 of the LPA). An easement that is not indefinite or for a specified term, it could only be equitable.
In principle, easements can bind buyers of the servient land (they are attached to the land). In problem questions, it is usually whether the right to do something is either a licence (which can't bind third parties) or an easement (which can). Sometimes, parties don't expressly provide easements into sales or leases, but it is argued that they are implied into the agreement.
There is a need to strike a balance. In any easement, there is always a benefit for dominant landowner A and a burden on servient landowner B. Easements are only allowed when the benefit is greater than the burden.
One right debated is the right to wander at will over someone else's land. It is a benefit to dominant landowner A, if it is a particularly nice part of land. However, it is a large burden on servient landowner B, who wouldn't be able to build anything on the land. This knocks it out of balance, so the burden outweighs the benefit, so the easement would not be allowed.
Around 65% of registered legal freeholds are affected by an easement: they are very common.
A right will be an easement if it meets the Re Ellenborough Park 1956 requirements; and it has been validly created, either because it was created expressly in such a way that meets the formality requirements to be legal or equitable; or it is implied under one of the four bases for the implication of easements. Sometimes easements that don't meet requirements may be created by Acts of Parliament.
Re Ellenborough Park 1956:
The homeowners built around the park were given the right to go on and use the park. The question was whether that right was an easement or not. The Court of Appeal ruled that it was, interpreting the right as enjoying the land as a garden - 85% of houses have a garden. Would a flat-owner (only 40% have a garden) get the right? It's not about statistics, but about whether it seems normal. Mere recreational rights would not meet the test (playing games or horse-racing for example). Recreational rights per se are not allowed, but recreation as part of enjoying a garden is allowed.
1. There must be dominant and servient land:
2. The right must accommodate (i.e. benefit/serve) the dominant land:
3. The dominant and servient land must not be owned and occupied by the same person:
4. The right must 'lie in grant':
Creation of Easements:
Implied grants/reservation:
Easements of necessity:
Intended easements:
Wheeldon v Burrows 1879:
- Utilise land that belongs to someone else in a particular way; (+ easements) or
- Prevent the owner of that other land from using their own land in a particular way (- easements).
A is the legal owner of a house. B owns a strip of land. A has an easement to walk across B's land to reach the public road. A's land is the dominant land. B's land is the servient land.
A owns a property in a residential development. B owns the car parking area in the development. A has an easement to part a car in the car parking area. A's land is the dominant land. B's land is the servient land.
The land which benefits from the easement is known as the 'dominant land/tenement', and the land over which the easement is exercised is known as the 'servient land/tenement'. An easement can be a legal interest if it is 'in possession'. It will last as long as a fee simple absolute or a term of years absolute, under Law of Property Act 1925 s.1(2)(a) (interests that can be legal and equitable are under s1 of the LPA). An easement that is not indefinite or for a specified term, it could only be equitable.
In principle, easements can bind buyers of the servient land (they are attached to the land). In problem questions, it is usually whether the right to do something is either a licence (which can't bind third parties) or an easement (which can). Sometimes, parties don't expressly provide easements into sales or leases, but it is argued that they are implied into the agreement.
There is a need to strike a balance. In any easement, there is always a benefit for dominant landowner A and a burden on servient landowner B. Easements are only allowed when the benefit is greater than the burden.
One right debated is the right to wander at will over someone else's land. It is a benefit to dominant landowner A, if it is a particularly nice part of land. However, it is a large burden on servient landowner B, who wouldn't be able to build anything on the land. This knocks it out of balance, so the burden outweighs the benefit, so the easement would not be allowed.
Around 65% of registered legal freeholds are affected by an easement: they are very common.
A right will be an easement if it meets the Re Ellenborough Park 1956 requirements; and it has been validly created, either because it was created expressly in such a way that meets the formality requirements to be legal or equitable; or it is implied under one of the four bases for the implication of easements. Sometimes easements that don't meet requirements may be created by Acts of Parliament.
Re Ellenborough Park 1956:
- There must be dominant and servient land
- The right must accommodate (i.e. benefit) the dominant land
- The dominant and servient land must not be owned and occupied by the same person
- The right must 'lie in grant'.
The homeowners built around the park were given the right to go on and use the park. The question was whether that right was an easement or not. The Court of Appeal ruled that it was, interpreting the right as enjoying the land as a garden - 85% of houses have a garden. Would a flat-owner (only 40% have a garden) get the right? It's not about statistics, but about whether it seems normal. Mere recreational rights would not meet the test (playing games or horse-racing for example). Recreational rights per se are not allowed, but recreation as part of enjoying a garden is allowed.
1. There must be dominant and servient land:
- Dominant land is frequently assumed to exist
- There must be servient land because the easement must be over that land
- 'Easements in gross' (those not attached to land) are not allowed
- Some argue that the requirement of dominant land should be abolished - can't have a right to land a helicopter on land as an easement without dominant land
- If an easement doesn't have to be attached to a plot of land, it doesn't need to be limited to that land's needs
- If there's no dominant land right, you lose the requirement that it must benefit that land, so extensive rights may be created: the burden-benefit would be disproportionate
2. The right must accommodate (i.e. benefit/serve) the dominant land:
- The right has to benefit the land in order to be an easement
- In Re Ellenborough Park, a right must be 'connected with the normal enjoyment' of the dominant land
- Whoever owns the land must find it valuable, as opposed to a right only personal to one's personal taste (e.g. if you go to one person's land to do morris dancing, it would be personal, not general to all following owners of the land)
- It would have to be nearby land, as having land in the South but a right to walk over land up North wouldn't benefit the land
- Helps to prevent proprietary status from whimsical rights
- If you have an ongoing business, a right may accommodate the land
- Moody v Steggles 1879: owner of public house wanted to affix a signboard to the adjoining property, advertising the public house. Court held this was allowed.
- Hill v Tupper 1863: Landlord owned a canal and a nearby inn. He rented out the inn to Hill. Landlord granted Hill a right over the canal. The right was the sole and exclusive right to put pleasure boats on the canal. Tupper (a third party) put his boats on the canal, Hill argued he had the sole and exclusive right. It was held that the right did not accommodate the inn. (However Platt v Crouch allowed a hotel owner an easement to put boats outside the hotel.) The argument was that the 'sole and exclusive right' was too far - anti-competitive nature outweighed the burden. Hill only had a licence. A licence cannot be enforced against third parties - there was nothing Hill could do about Tupper's boats. The landlord could have stopped it but didn't.
- Policy considerations often influence judicial thinking over this requirement
3. The dominant and servient land must not be owned and occupied by the same person:
- Dominant and servient estates in land
- It is possible for one person to own two plots of land
- That person can grant a tenancy over land and provide that the leaseholder has an easement over the land
- The tenant and landlord would own the freehold and leasehold estate
- A landlord can retain an easement over his leased land
- A landlord can grant an easement over his remaining land
- If you have a leasehold estate that has the benefit of an easement and go on to buy the freehold in that land, there should be an implied easement
- A owns house and field. Leases house to B. Grants an easement to B for crossing the field. B buys the freehold from A. There is no longer an actual easement.
4. The right must 'lie in grant':
- There are a number of sub-requirements for this:
- Must be within the general nature of rights recognised as easements: there are many types of right that can be easements, e.g. rights of way, of storage, to park cars, etc. Dyce v Lady James Hay 1852: 'The category of... easements must alter and expand with the changes that take place in the circumstances of mankind.' The list is not exhaustive.
- Negative easements: restricting the burdened land in what they can do, e.g. not allowing to restrict light channel onto dominant land. Shouldn't be there, but so well entrenched in the law that they remain there.
- The right to have something done is not an easement: it shouldn't require anything more than a passive approach on the part of the servient owner. The servient owner should only have to stand by and allow whatever the easement is - they shouldn't oblige to positively do anything: Jones v Pritchard 1908 - an easement to cross a bridge will impose no obligation on the servient owner to keep it in repair. The servient owner can't interfere with the easement but if someone else or nature breaks the object of the easement, the servient owner needs to do nothing.
- An easement can't be a right of joint occupation. If you have a right to exclusive possession, it can't be an easement. This is a lease, or ownership of the land. An easement can't entitle possession. The land still belongs to the servient owner, the dominant owner merely has a right over it.
- How far can the right go? (i) the ouster principle - would the servient owner be left with any reasonable use of the land? If they're left with no such use, it can't be an easement. Hair v Gillman 2000: granted an easement to park somewhere in the forecourt. There was room for 3 or 4 cars. They had plenty of room left for the owner to do what they wanted. Batchelor v Marlow 2003: there was only room for 6 cars and the easement was to park 6 cars for 9.5 hours every day monday - friday. Argued that outside of the hours, the owner could've charged others to use the car park. These weren't reasonable and 'commercially insignificant'. This left the owner with no reasonable use either for parking or any other purpose: there was no easement. (ii)
Creation of Easements:
- Even when an alleged easement meets the Re Ellenborough Park 1956 requirements, it will only actually be an easement (as opposed to a licence) if it is validly ‘created’ as an easement.
- If an easement is included in favour of the land not sold, this is an 'express reservation'.
- The sale would have to meet formality requirements, so the easements would meet the requirements as well
- If you expressly grant an easement, e.g. a right of way, there may be disputes over how/what can use the right of way. If you allow a right of way on a path, can you walk? Drive? etc.
- If the right of way is over a broad drive, this would implicitly include vehicular access; dirt track: access by foot.
Implied grants/reservation:
- In the event of a subdivision, there may be an express grant/reservation of particular rights
- It could take the form of selling or leasing part of the land to a third party
- If an easement is implied in favour of the buyer, it is an implied grant
- If an easement is implied in favour of the seller, it is an implied reservation
- There are four methods of creating an implied grant, but only two can create an implied reservation
- If an easement is implied into a (legal) deed, it will become a legal easement
- If you gave an equitable lease over the house, any easement is an implied equitable easement
Easements of necessity:
- An easement of necessity will be implied if, without an implied easement, the land couldn't be used at all
- No right of way will be implied if there is some means of access as of right
- If you have any other way of accessing the property, which you enjoy as a right, it doesn't matter how inconvenient that way is, an easement will not be implied
- In some ways you can get vehicular access as an easement of necessity (if it is unreasonable to expect one to walk so far through the given right of access).
- Union Lighterage Co v London Graving Dock Co 1902: It was held that there was no implied easement of necessity to secure a dock in position on the dominant land. The land could be used without the right.
- Easements are said to be based on presumed intentions: they can disallow easements of necessity by ruling it out of the agreement
Intended easements:
- They can arise in two ways:
- Where it is necessary to give effect to some other expressly granted right (Woodman 1915: someone was given the right to draw water from someone else's stream. You clearly can't do this unless you have a right of way to the stream: it was necessary to give effect to the expressly granted right.) This includes ancillary rights to park once you reach that property if the express right is a right of way to the property (this is rare).
- Where the parties had a common intention that the land should be used in a definite and particular manner; and the easement is necessary to give effect to that intended use (Wong v Beaumont Property Trust Ltd 1965: lease to use the cellar premises as a restaurant - purpose unlawful unless a vent was attached to the landlord's adjoining premises. Easement was implied to construct and use the vent.
Wheeldon v Burrows 1879:
- Only an implied grant
- Three fundamental pre-conditions: common ownership of two plots; presence of a quasi-easement; subdivision .
- Wheeldon can be relevant where the holder of an estate has exercised a quasi-easement over one part of the land in favour of another part of it. A quasi-easement is a right that could be an easement were the plots held separately. If it is present, the plot of land which it benefits is the quasi-dominant plot.
- Includes a right of way, the use of drains etc. The path and use of drains would be quasi-servient land; the rest of the land is the quasi-dominant land.
- Subdivision requirement: X sells the freehold in (or grants a lease over) the quasi-dominant land.
- Conditions:
- The quasi-easement must be 'continuous and apparent' (a right enjoyed passively - a right to light - you don't have to do anything to enjoy it; a right that is detectable on a careful inspection). Rights of way can never be continuous BUT this is ignored (Borman v Griffith). It suffices if just apparent.
- It must be necessary for the reasonable enjoyment of the quasi-dominant land (Wheeler v JJ Saunders Ltd 1995: P bought a house from V. P could access from the east via a public road, but claimed a right to access from the south over the land retained by V (which was more convenient). The use of the south entrance was not considered reasonably necessary for the use of the house.
- Millman v Ellis 1996: M purchased part of E's land. M was expressly granted a right of way over E's land connecting the purchased part and a public road. M successfully claimed an extension of the permissible way to cover a lay-by that made it safer to turn in and out of the access route. Access would otherwise be dangerous.
- Borman v Griffith 1930: Subdivision, easement was implied to use heavy vehicles to access the property, as it was reasonably necessary for C's business - the conduct of which was explicit.