This is the first of our five-part series discussing all things easements, from their creation to claims of abandonment. It is an area of law that frequently leads to tensions and disputes between landowners about whether the right exists, the extent of that right, and the obligations in relation to it.
An easement is a right enjoyed by a landowner (called the dominant tenement) over land in the ownership of another person (called the servient tenement). Perhaps the most common example is a right of way giving the dominant owner the right to enter or use the servient land in some way. Some people will also be familiar with a right to light which is an easement that prevents something from being done on the servient land.
Requirements
The case of Re Ellenborough Park [1955] 3 All ER 667 sets out the four ingredients of an easement:
- There must be a dominant (land which benefits from the easement) and a servient (land over which the easement is exercised) tenement;
- It must be capable of forming the subject matter of the grant of an easement;
- The easement must accommodate the dominant land; and
- The owners of the dominant and servient land must be different people. The general rule is that a person cannot have an easement over their own land. An exception to this rule is where an owner of two parcels of land grants an easement over one parcel to the tenant of the other.
Discussing requirements 2 and 3 further:
2. An easement must be capable of forming the subject matter of a grant, meaning that the easement must:
- Not be too wide or vague (e.g., a right to a “beautiful view” has been held to be too vague to be an easement);
- Not be inconsistent with the proprietorship or possession of the servient owners (e.g., the easement must not be so extensive to put the servient owner out of possession of her land); and
- Possess the quality of utility and benefit (as opposed to being a right of mere recreation or amusement).
3. The easement must accommodate the dominant land meaning that it must confer the dominant tenement a real and practical benefit and have some necessary connection with it.
Creation
Easements can only be created by grant:
- Express grant (e.g., an easement granted by deed);
- Implied grant (e.g., an easement of necessity); or
- Presumed grant (or prescription).
Taking each of these in turn:
1. Express grant
There is no prescribed wording for an expressly granted easement, however, it must be done by deed. If it is not created by deed, the easement will be equitable only.
2. Implied grant
There are several ways in which an easement can be implied at law:
- By section 62 of the Law of Property Act 1925 which implies easements in certain circumstances;
- By necessity;
- By intended use; or
- Under the rule in Wheeldon v Burrows [1874–80] All ER Rep 669. This rule applies to the disposition of land that was previously in common ownership. It implies a grant of all the continuous and apparent easements over the retained land necessary for the reasonable enjoyment of the land sold.
Necessity
An easement may be implied where the land cannot be used without the right, for example where a parcel of land is landlocked. However, the Court will be reluctant to imply an easement by necessity if the right is more convenient (as opposed to necessary) or where an alternative route is available or can be created.
Intended use
For an easement to be implied by intended use:
- There must be a shared intention between the parties that the land will be used in some definite and particular way; and
- The easement must be necessary to give effect to that intended use.
When determining that shared intention, the Court will consider:
- The terms of the conveyance or transfer;
- The position on the ground; and
- The provisions of the contract and communications between the parties before the execution of the conveyance or transfer.
Presumed grant (or prescription)
Easements by presumed grant (or prescription) can arise:
- At common law;
- By lost modern grant; or
- Under the Prescription Act 1832.
The doctrine of prescription will be discussed further in our next blog, but for now, we will only mention that it is a way of establishing that an easement has validly existed before, as opposed to creating a new one.
Whether you are seeking to assert your rights over someone else’s land or challenge a claim made against your land, it is important that proper legal advice is sought at an early stage.
How can we help?
For more information concerning the subjects discussed in this article, please a member of our Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or contact us via our online form.
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