Easement

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An easement is a right that one property owner has over the land of another. Historically it seems that easements came into use as a method to allow landowners to sell parts of their land in a way that would be attractive to potential buyers. For example, If X sells a parcel of land to Y, and Y's land has no direct access to the highway, how can Y enforce a right of access to his new land? Of course, X and Y can enter into a contract to give effect to this requirement, but what if either X or Y sell their respective interests? How can a successor to Y (call him Z) enforce his right of access against X, even when X and Z have no contract? Easements are obligations that 'run with the land', and are therefore attached to the Title, not the person. Technically, easements are a form of Servitude and therefore stop short of being rights of ownership. Now, if Z has from X a right to get to his (Z's) land across X's land, this clearly does not interfere with X's exclusive enjoyment of his land. However, suppose Z has an easement for storage of grain on X's land, it is much less clear that this is a servitude, rather than a title in its own right. In other words, it can sometimes be unclear whether a right is an easement or a form of ownership. The general position now seems to be that anything that gives exclusive rights of access or occupation cannot be an easement. So X could have an easement to park his car in Y's field, but he probably could not have an easement to park in Y's garage (because this would exclude Y).

Another complication is that some things that are conventionally classified as easements are actually more like covenants. This includes easements of light and of air, where the affected property owner is under an obligation not to obstruct light and air from neighbouring properties.

An easement does not give the dominant tenement the righr to take anything from the land. Such a right is called a profit.

While it would be possible to make an exhaustive list of all the rights that the courts have so far recognized as easements, it is not particular easy to derive general principles from this list. It is therefore difficult to define an easement, or specify exactly what is required for one to exist. However, in Re Ellenborough Park (1955) the Court of Appeal gave some guidance as to the minimum conditions that must be satisfied.

  • There must be a dominant tenement and a servient tenement. Note that it is the 'tenement' (i.e. the title) that is affected, not the land in itself. Thus a tenant may have an easement against his landlord, even though the land is the same. However...
  • ... an easement is extinguished if the dominant and servient tenements ever come into the same ownership. A person cannot be subject to an easement against himself (but see quasi-easement).
  • The easement must 'accommodate' the dominant tenement. That is, it must benefit the land, not merely the owner for the time being (Tupper v Hill 1863).
  • The easement must 'lie in grant'. That is, it must be capable of being granted by a person or body who is legally competent to grant it. It must also be capable of reasonable exact description and within the general nature of rights that have been judicially recognised. Some examples of rights that have been recognized as easements include: rights of access, specific rights to light, rights of water, rights to drainage, rights or storage, rights of air, and rights of support.

In addition, there are other limitations to the creation of an easement:

  • Where the servient tenement owner is required to expend money. A possible exception is the right to have the servient landowner to maintain a fence.
  • Where the dominant tenement owner has to ask for permission each time he wishes to exercise the right (Green v Ashco Horticultural Ltd 1966).
  • Where the dominant tenement owner has exclusive possession of the servient tenement (Copeland v Greenhalf 1952). This may be an issue in relation to the right to storage more than other easements and some interesting case law has arisen in relation to the right to parking. It was held in Batchelor v Marlow 2003 that as the parking amounted to virtually the whole beneficial use of the land, it would fail as an easement. In Montcrieff v Jamieson 2007, their lordships suggested that the true test be whether the servient tenement owner is deprived of possession and control. This is of persuasive authority only in England and Wales and is a current gray area of the law.


Acquisition of easements

Easements can be acquired in a number of ways:

  • by express grant, that is, an explict creation of the easement by the owner of the servient tenement;
  • by express reservation, that is, where the buyer and seller of a piece of land agree that the seller should retain some limited right over the land he is selling;
  • by necessary implication, where the existence of the easement is necessary for the use of the dominant tenement The only practical example would be a right of access to a piece of land that would be otherwise landlocked;
  • by common intention, which often arises where the land has been sold or leased for a particular purpose and was found to exist in Wong v Beaumont Properties Ltd 1965.
  • by implied grant via the rule in Wheeldon v Burrows (1879)
  • by implied grant via section 62 of the Lpa (1925) (see Platt v Crouch (2003), Wright v Macadam 1949);
  • by Prescription, where a long-established custom is seen as a right (e.g. rights of way).


Formalities

An easement is one of the interests in land that is capable of being legal according to section 1(2)(a) of the LPA (1925). Unless the claimed easement arises by prescription, it must be granted by deed and be for a term equivalent to an estate in land to be effective in law. To bind a subsequent purchaser of the servient land, an express legal easement must be substantially registered while an implied legal easement may binding as an overriding interest under schedule 3 paragraph 3 of the LRA (2002).

An easement which does not comply with the requirements for legality may be recognized as an equitable easement, if the courts would be prepared to order the grantor to complete the legal formalities. In registered land, an equitable easement will only bind a subsequent purchase if a notice has been registered on the charges register(section 32 LRA (2002)), although an equitable easement was held to be binding as an overriding interest in Celsteel v Alton House (1986).

Land and Property Law