Land Law Easements

Introduction:

1. An easement or licence can be granted. Licence is private between 2 immediate partners as a personal right and an easement can last a lifetime and is a proprietary right so much stronger. 

2. Easements definition: limited RIGHT (not possession) over someone elses land which is usually POSITIVE (allows someone to DO something on a neighbours land). 65% of land is subject to easements. Without an easement, the party would be trespassing.

3. Reform: Easement rules are very old and a number of reforms have been made. LJ Munby's 'Making Land Work: 'easements, covenants and profits' Law Commission no 327 June 2011.

4. Exampes of easements: right of way, right to use pleasure garden or right to park a car

5. Easements vs Profits: easements give a right to DO something (walk or drive) but a profit gives a right to TAKE something from the land (cut wood for fire)

6. Easement terminology: Dominant land= BENEFITED LAND. Servient Land= BURDENED LAND. Easement benefits land of purchaser = GRANT.Easement benefits land of transferor = RESERVATION

When deciding if you have an easement, must look at:

1. Characteristics: does the claimed right have the characterstics of an easement?                  Re Ellenborough Park:

• a. Need a dominant and servient land
• b. Easement must accomodate/benefit the dominant tenement
• c. Dominant and servient tenement must be (at least occupied) by different people
• d. Right must be capable of forming the subject matter of a grant

2. Acquisition: has an easement actually been acquired

a. Grant- express,implied:necessity,common intention,Wheeldon v Burrows,statute,prescription

b. Reservation - express, implied:necessity,common intention

Starting point and leading case in this area:

Re Ellenborough Park 1956

Facts: Number of neighbours who wanted to use the park but needed to establish an easement in order to use the pleasure ground for leisure purposes. 4 chacteristics established required to fulfil an easement. Part of the problem arose out of the fact that the War Office had taken possession of the land during World War II, and compensation was due to be paid to the owners of the properties built on land surrounding the land which had been occupied during the war. Beneficiaries of the trust of the original owners of the land challenged this, stating that the property owners had only a personal advantage (a licence, with no proprietary rights), and not an easement proper (which would include proprietary rights). Evershed MR determined the following criteria for defining an easement:

(1) There must be a dominant and a servient tenement
(2) an easement must "accommodate" (i.e. benefit) the dominant tenement
(3) dominant and servient owners must be different persons and
(4) easement must be capable of forming the subject matter of a grant

1st Characteristic: Must be a dominant and servient tenement

 Definition: Must be 1 land benefited and 1 land burdened and both must attach. Easements can't exist 'in gross'

Alfred Beckett v Lyons (1967): right claimed by inhabitants of a village to collect coal from the shore. No dominant land so not capable of forming an easement. Can't just be a group of people

Easements in gross:  An easement that attaches a particular right to an individual rather than to the property itself. The easement in gross is often considered irrevocable for the life of the individual, but can be revoked if the individual sells the property that grants him or her that easement. would over burden the servient land. Would clog the system and would not know who could exercise right! 'clogs on title'.(see Law Comm Report and Morgan or Sturley 'Easements in gross' 1980.

Profits a prendre: in contrast which gives the holder the right to take natural resources such as petroleum, minerals, timber, and wild game from the land of another. Indeed, because of the necessity of allowing access to the land so that resources may be gathered, every profit contains an implied easement for the owner of the profit to enter the other party's land for the purpose of collecting the resources permitted by the profit.

2nd Characteristic: Right must accomodate the dominant tenement:

Definiton: the right must ENHANCE the USE and ENJOYMENT of the dominant land not merely benefit the owner of that land personally!!!! The dominant and servient must be sufficiently close

1.Bailey v Stephens Byles J: sufficiently close so the dominant land can derive the benefit! 'Can't have a right of way if the owner of an estate in Northumberland were to grant a right of way to the owner of another estate in Kent'

2.Re Ellenborough Park: did the use of the landd benefit land nearby or just the people? Court established that raising economic value of land was not enough to benefit land and the easement must increase the enjoyment. The court found the use of the communal garden did benefit the neighbours land as it was like using as a private garden. For example, it might be nice to visit London Zoo but it isn't capable of being an easement as doesn't benefit a house!

3.Hill v Tupper 1865: Right claimed boats on canal. Court held licence only and business use and doesn't relate to use of land. 

4.Moody v Steggles:Sign on neighbour land to see where pub was. Held it was an easment that benefited the dominant land.

3rd Characteristic: Tenements must be occupied by DIFFERENT people:

Dominant land and Servient land cannot be owned and occupied by the same person! i.e. Max owns land A, B & C. Wants to create an easement before sells B land to someone new but can't as he owns A, B & C and doesnt meet the 3rd characteristic requirement!!!!! Diversity needed.

Reform in this area: Law Commission Report 327: 2.28 At first sight, the rule states the obvious: no-one needs an easement over own land but no-one can create an easement between two separate plots in his own ownership before selling. Consequence= if the dominant & servient come into common ownership, easement is extinguished. 4.23 Propose that this requirement be abolished, provided that titles to the dominant and servient estates were both registered and under separate title numbers. 4.24 There is no logical reason why the dominant land and the servient land should not both be owned and in the possession of the same person in the same capacity.Resolve practical problems and described as “the single most important proposal in the CP’’.Complexity creates additional work for Land Registry staff. The solution is to enable developers not only to plan the estate lay-out with Land Registry before sales  but also to create valid appurtenant rights between them. The objective is when each plot is sold, each will have appurtenant rights that are not vulnerable to challenge later. We recommend that provided that title is registered and are in common ownership shall not prevent the creation/existence of easements or profits and set aside the unity of seisin rule if registered.

4th characteristic: capable of forming subject matter of a grant: (problematic area):

Definition: means the right must be capable of being granted by deed

i) must be a capable grantor and grantee

ii) right must be sufficiently definite

iii) right cannot amount to exclusive or joint user (i.e. parking a car)

iv) right of sort traditionally recognised as being easements

v) right must not impose positive burden on servient owner

4th characteristic: sub section i) and ii) :

4 i) Must be a capable grantor and grantee:

- grantor must have the power to make the grant. grantee must be competent to receive it. 

4 ii) Right must be sufficiently definite (sufficiently well defined not broad or ill defined) :

- right of way= YES. right to wander = NO. 

1. Hunter v Canary Wharf 1997: nusiance case. Canary Wharf towers and issue with receiving TV signals. Is right to TV signals capable of being an easement? NO. Too broad and would over burden servient land. 

2. AG v Antrobus 1905: wandering freely over and around Stone Henge. Court held too broad!!

iii) Right cannot amount to joint or exclusive possession of servient land:

1. Reilly v Booth 1890, LJ Lopes: 'there is no easement known to the law which gives exhaustive and unrestricted use of a piece of land'

2. Copeland v Greenhalf 1952 Lord Upjohn: Wheelright storing vechicles awaiting repair on ***** of land. Right was held to be too extensive to constitute an easement. 'The claim amounts to a joint user of the land. The defendent is claiming the whole beneficial uder of the ***** of land and is virtually a claim to possession of the servient tenement and exclusion of the owner'. 

3. Wright v Macadam 1949 LJ Tucker: Right to store coal in a shed was accepted by the Court of Appeal as an easement. 

4. Grigsby v Melville 1972 J Brightman: tried to reconcile the case law. Case concerned trying to use whole of cellar to store goods. Not an easement. Matter of 'one of degree of use'.

5. Miller v Emcer 1956 Evershed MR: BUT Exclusive but intermittent use IS capable of being an easement in this case for use of a toilet. 

Contrast: Copeland=whole beneficial use NO. Wright=part of. Gringsby=one of 'degree'

iii) Capable of forming subject matter of grant: Parking a car capable of an easement?:

Two different approaches:   1. Reasonable use and degree   vs.   2. Posession and control

Approach 1: Reasonable use and degree:

1. London & Blenheim Estates v Ladbroke Retail Park, Judge Paul Baker QC 1992: Coop sold part of its land to London & Blenheim, with the right to park cars on the land retained by the Coop. The agreement included a provision that if L&B were to acquire more land, it should tell the Coop in advance in order to get similar parking rights. Then, the Coop sold its land to Ladbroke. L&B wished to serve notice for more parking rights for new land it had acquired.'The essential question is one of degree. If the right granted would leave the servient owner without any reasonable use of his land, it could not be an easement'. Went on to say: 'a small coal shed in a large property is one thing. The exclusive use of a large part of the servient tenement is another'. Also known as the 'ouster principle'. Held YES= parking easement capable! But in Court of Appeal LJ Gibson found no easement as land not identifable (different issue). 

Approach 1: Reasonable use and degree:

2. Batchelor v Marlow 2003, Court of Appeal, Henry, L.J.; Tuckey, L.J.; Maurice Kay, J. : A right to park cars, on Mondays to Fridays between 9.30 am until 6.00 pm, on a ***** of land owned by B was incapable of being an exclusive prescriptive easement because the use of the land was so intrusive as to render B's ownership illusory. Allowing the appeal, that B had no reasonable use of the land for parking because he was unable to use it during the periods when parking spaces were most likely to be needed. His right to use the land for other purposes was restricted by the times during the week when he could not use the land, and therefore his ownership of the land was illusory. Accordingly the judge had erred in his conclusion since such a right was incapable of being an easement.

• TEST FORMULATED: Would the servient owner have any reasonable use of his land? Could be an easement if 2 cars in 10 spaces but not 2 in 2. Could be an easement if 10-11am but not 9-5pm. 'The ouster principle' = whether the servient owner is OUSTED from their property

Approach 2:  Posession and control 

1. Moncrieff v Jamieson 2007 House of Lords Scottish law: Easements = servitudes! Lord Scott: Dominant land was at bottom of a steep slope by sea. Not possible for vehicles to reach it and accessible only on foot, by a gate from the servient land. Dominant land was separated from the servient land, conveyance included a right of access from the public road across servient land. Common that right inc. access with vehicles and on foot.Owner of dominant land claimed right also entitled to park car on the servient land as only accesable on foot.Had the opportunity to clarify the law. Took a more relaxed approach and established 'possession and control'. Obiter/persuasive only so not binding. The case recognised that easements must always be exercised without amounting to exclusive possession over the servient land, but the House of Lords displayed a more sympathetic attitude to easements that substantially exclude the servient owner. Obiter, the court also recognised the possibility of easement. 'I do not see why a landowner should not grant rights of a servitudal character over his land to any extent that he wishes' i.e. contractual rather than proprietary and should be able to do as he pleases with his land. 'Reject the test that asks whether the servient owner is left with any reasonable use of his land and substitute for it a test which asls whether the servient owner retains possession and control of the servient land'. This new test allows a far wider range of easements than the old test did. HoL's did not have to go as far if extends to a right to park a car in a single defined space! Lord Scott felt approach 1, old test needed qualification and 10 cars in 10 spaces does prevent!

- Law Commission (no 327) 2011 Recommendations including 'draft bill': didnt agree with House of Lords decision in Moncrieff. Recommended that exclusive possession cannot be an easement but an easement can be a right even if it deprives the servient owner of all reasonable use of his land,  which suggests that whilst Moncrieff is criticised, want to move more towards Scottish test. This recommendation would reverse Batchelor and allow many more easments. 

- 'Easement of car parking: the ouster principle is out but problems may aggravate' Lu Xu, 2012: With the overwhelming force of joined criticism against the ouster principle from the judiciary, legislature and practice, not to mention the assumed support from the general public for allowing a right to park, it seems inconceivable that the ouster principle can resist any further in the realm of car-parking, the court should adopt a much bolder approach and take the lead in developing clear and useful principles to deal with practical difficulties. Law Commission's recommendation to categorically abolish the ouster principle is not well-thought-of, in eradicating 1 problem, the proposal would create many more serious problems in areas where presently there is none. If enacted, it will create great uncertainty in established principles and case law far beyond the issue of car parking that it was specifically targeting. It will completely change the landscape of easements and related property law concepts, such as possession or ownership, in unforeseeable ways. But the ouster principle continues to serve many essential and irreplaceable functions elsewhere and the baby certainly should not be thrown out with bath water. Should allow the common law to grow out of the shadow of Batchelor.

'Easements, exclusionary use and elusive principles - the right to park' 

Michael Haley, 2008

'While the House of Lords was keen to emphasise that there is no objection, in principle, to an easement to park, the justification offered for the recognition of a permanent and unregulated easement to park in an allocated bay is thoroughly unconvincing. The boundary between exclusive use as of right and exclusionary use that is merely incidental to the exercise of a particular right remains as elusive as ever.'

iv) Right must be within the nature of rights traditionally recognised as easements:

Definition: Novel rights are not capable of being easements 

1. Hill v Tupper 1863: boats on canal not recognized/capable of being an easement

2. Miller v Jackson 1977: Denning: Nuisance case. Cricket balls being hit into a garden is not a recognised easement known to the law

3. Phipps v Pears 1965: Denning: Negative easement to prevent building being pulled down and expose to weather. Court held no easement. Novel and negative to restrict enjoyment of land. 

4. Hunter v Canary Wharf: Negative easement. TV signals. HoL's held no easement as too extensive and not known to the law or recognised. Restriction on land to build!

v) Right must not impose any positive burden on the servient owner (to do something):

Definition: can't have a right if require the servient owner to do something for you for example servient owner to clean the pool to enable you to enjoy the easement

1. Rance v Elvin 1985: water through pipes that obliged the servient owner to supply water i.e. positive burden. Could be easement as long as no need to give a flow of water. Two types of right were claimed, first a right to a supply of water and secondly a right to the uninterrupted passage of any water that came into the pipes under D's land. The first type of right imposed a positive obligation on D. The second type of right imposed a negative obligation on D not to interfere with the pipes carrying water to the Farm House. The second type was an easement

2. Duffy v Lamb 1998: Leasehold owner of industrial premises with an easement for the supply of electricity to those premises. Informed that they would have to make its own arrangements for electricity supply and turned off the supply. Case of Rance v Elvin was on nearly identical terms, relating to an easement of water rather than electricity. The owner of the servient tenement was not under a duty to ensure but was under a duty not to obstruct such supply. Turning off the supply of electricity constituted an actionable interference with D's easement.

2. Acquisition: has an easement actually been acquired

2i. GRANT   2ii. RESERVATION

2i Grant defintion: land transferred on terms that transferee will acquire an easement over land transferred by transferor. GRANT an easement. Easier to acquire than reservation. Either by:

• a. express
• b. implied (necessity, common intention, rule in Wheeldon v Burrows)
• c. statute (section 62 LPA 1925)
• d. prescription

2ii Reservation definition: transferor land transfers on terms where they will RESERVE a right over land transferred away. Keep a right back. Harder to acquire than grant as should of reserved before transferred land. Either by:

• a. express
• b. implied (necessity or common intention only)
• (note: excludes statute and Wheeldon v Burrows and prescription)

2i. EXPRESS GRANT:

Definition: express grant of a legal easement

All 4 required for express easement:

1. Duration equivalent to fee simple or leasehold - s1.(2)(a) LPA 1925

2. Created our of legal estate (NOT EQUITABLE)

3. Granted by deed - s.51(1) LPA 1925

4. Completed by registration (if registered land)

or if can't meet legal easement....

Defintion: Express grant of an equitable easement:

1. Valid contract for the creation of the easement complying with s2. LP(MP)A 1989 (Contracts for sale of land to be made by signed writing) Equitable only available in express.

2i (b) . IMPLIED GRANT:

Definition: if there is no express grant of the easement (law or equity) an easement can be created informally. The LEGAL easement is inserted into the conveyance even if not expressed. Cannot be EQUITABLE like with EXPRESS. LEGAL only. 

Necessity:

where land cannot be use at all. Must really need it. Very strict. 

1. Union Lighterage v London Graving Dock 1902: Stirling J: 'easment of necessity means without which the property cannot be used at all'

2. Nickerson v Barraclough 1979: No use of road=land useless so necessity easement implied

3. MRA Enginerring v Trimster 1998: 2 plots of land. No access to 1 plot by road unless crossed the other plot but there was a public footpath. Very strict and footpath meant not a necessity. Court of Appeal held no absolute requirement despite being very difficult.

4. Sweet v Sommer 2004: Hart J: question left open about whether a car is a neccesity

2i (b) . IMPLIED GRANT:

Common Intention 

Definition: reflects the parties' common intention

1. Wong v Beaumont 1965: Acquired chinese restaurant leasehold. Covenanted to comply with health+safety, elliminate smells with ventilation duct. Easement implied as common intention required in order to give effect to Mr Wong's obligations in his lease!

2. Stafford v Lee 1992: Nourse LJ: Easement acquired over driveway to access their house. Court of appeal established 2 hurdles for easements implied by common intention:

• 1. Must establish a common intention as to some definite and particular user. 
• 2. Claims are necessary to give effect to it.

Court held there was a common intention that a house would be built and easement necessary to give effect to common intention.

2i (b) . IMPLIED GRANT:

Rule in Wheeldon v Burrows:

Definition: prevents derogation from grant. i.e. A transfers to B benefit of rights which A found useful for benefit of property 

1. Wheeldon v Burrows 1879: Thesiger LJ: 'Where a plot of land is subdivided all those continuous and apparent quasi-easements or all easements necessary to the reasonable enjoyment of the property granted and which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted will pass to the purchaser' 

4 requirements from Wheeldon: (can be on transfer of legal OR equitable estate)

1. Need a quasi-easement

2. Continuous and apparent

3. Necessary to the reasonable enjoyment of the dominant property

4. Used at the time of transfer of dominant land

Wheeldon v Burrows 4 requirements:

Requirement 1: Quasi-Easement definition: someone who owns 2 plots of land. Easement which owner of whole plot used to benefit from part of land and subsquently transferred away. i.e. Before transfer land: Charlotte owned A + B plots. Used A to get to shop but didn't have an easement as can't have an easement against yourself. After transfer land: Charlotte transfers A to Max. If Charlotte found useful to get to shop, Charlotte should transfer the right over to Max!

Requirement 2: Continous and apparent:

1. Hansford v Jago 1921: continous and apparent is shown by a well worn track over a substantial period of time and discoverable on reasonable and careful inspection of the land. 

2. Ward v Kirkland 1966: Ungoed-Thomas J: Cottage and one wall abutted next doors farm. Before cottage sold and farm owned by 1 person, owner used farm to do maintance on cottage wall. Now cottage owner went on to land to do maintance and claimed easement as continuous and apparent. If mark could be seen on land left by original farmer using the land, would be an easement but court held no mark on land and couldn't see where someone had done so. Claim failed. 'continuous and apparent seem to be directed to there being on the servient tenement: a feature which would be seen on inspection and which is neither transitory nor intermittent'...

Requirement 3: necessary to the reasonable enjoyment of the property: 

not as strict as necessity.

1. Borman v Griffith 1930: use of a road was convenient not necessary but easement implied

2. Millman v Ellis 1996: Claimant owned large plot of land with house on. House was sold but retained land around it. Purchaser expressly granted access to road but was highly dangerous as could not see either direction. When all land owned this method wasnt used + less dangerous road used. Claimed easement under Wheeldon rule for less dangerous road. Court of Appeal held requirement for reasonable enjoyment was satisified for less dangerous road. 

2. Wheeler v Saunders 1995: 2 methods of access. Farmhouse bought which was previously owned all together on one plot. 1 method included using others land. Court held not necessary to use method of crossing others land and claim for quasi-easement failed. 

Do you need requirement 2 (continuous/apparent) AND requirement 3?

Traditionally need to show both but recently there is emphasis on requirement 3 Wheeler v Saunders 1995 but Millman v Ellis 1996 spent equal time on both. Discuss all approaches...

Requirement 4: Used at the time of transfer of dominant land

Definition: Not strict. i.e. if owner stopped using easement many years ago, may not satisfy! Borman v Griffith and Castagliola v English shows not strict!

Wheeldon rule will operate:

• - Where dominant land is conveyed by deed or 
• - Where there is a contract to transfer the dominant land (Borman v Griffith- claimant claimed easement under Wheeldon rules when only granted contract for lease (equitable) but courts held that Wheeldor rule still applied whereas...
• - s.62 LPA 1925: works on conveyence only (transfer of legal estate)

Wheeldon rule will be excluded by evidence to the contrary intention (i.e. obviously excluded) :

• - Borman v Griffith: 'unless by the terms of the contract, that right is excluded' 
• - Wheeler v Saunders: fence errected over easement area and held fence showed contrary intention excluding an easement claimable!

2i (c) . STATUTE GRANT:

Statute: Acquisition under section 62 LPA 1925:

Definition: section implies into every conveyance of a legal estate 'all liberties, privileges, easements, rights and advantages whatsoever, appertaining to the land or any part thereof'. Courts have decided that s.62 creates new easements from purely revocable privileges. 

MUST BE LEGAL ESTATE NOT EQUITABLE (section 205(1)(ii). Borman v Griffith section 62 did not operate as contract in place and not correct conveyance (Wheeldon rule only available)

Revocable privilege + Section 62 LPA 1925 = Easement

Section 62 example triggers:

1. Max owns 2 plots of land quasi dominant and servient tenements. 2. Charlotte buys quasi dominant land as tenant. 3. Max gives Charlotte permission to walk across the servient land. 4. There is a conveyance of the domiant land to Charlotte i.e. leasehold or freehold. 5. On that conveyance, section 62 bites and transforms the earlier privilege/permission into an easement

(quasi because not easement yet)

2i (c) . STATUTE GRANT: Acquisition under section 62 LPA 1925:

1. International Tea Stores v Hobbs: 2 houses,1 let as business for years. Df allowed claimant to walk across yard owned by df. Business sold to tenants and nothing said further about the yard.Claimed easement by s62.Court held permission became an easement on conveyance.

2. Wright v Macadam: Jenkins LJ: Df let flat to claimant+ gave permission to use shed to store coal.1 year later granted new tenancy for flat but nothing about permission to store coal. Claimed easement and court held right enjoyed by permission became easement under s62.'Ample authority that a right in fact enjoyed with a property will pass on a conveyance of the property by virtue of the grant to be read into it under s62,even though permission only and precarious'.

3. Goldberg v Edwards: Df owned house with annexe w/access by outside passage + through house permissed.No lease formally granted for 2yrs.House let by df's to someone else who tried to bar access through house. Court held easement impliedly granted under s62 on conveyance!

4. Hair v Gillman: Landlord granted lease for 7yrs, gave permission to use forecourt for parking. Quasi-dominant land sold (conveyance). CoA held permission became easement under s62.

2i (c) . STATUTE GRANT: Acquisition under section 62 LPA 1925:

Conditions for s62 to operate: Prior diversity of occupation

• Prior diversity of occupation: quasi dominant+servient tenements must be occupied by different people prior to the conveyance.i.e. person claiming benefit of easement must be in possession before relevant conveyance:start with 1 person owning 2 plots, plots divided and person into possession of 1 of 2 plots. Permission granted THEN conveyance occurs.    
• Order: Different people occupy dom and serv land >Permission given > Conveyance of dom land to occupant > s62 bites on this conveyance > Permission becomes easement.

1. Sovmots Investments v Secretary of State for Environment, Lord Edmund-Davies 1979 in House of Lords: Compulsory purchase order over flats in centre. Failed to mention any rights for gas or water. Claimed easement acquired by s62. House of Lords held previous case law states that s62 cant operate where both dominant and servient tenements owned by 1 person before conveyance. 1 person can't own all of the property before the conveyance. 'the section cannot operate unless there has been some diversity of ownership or occupation of the quasi-dominant and servient tenement prior to conveyance: see Long v Gowlett'. 

There are exceptions/ways around the need for prior diversity of occupation.....

 Conditions for s62 to operate: Prior diversity of occupation

• There are exceptions/ways around the need for prior diversity of occupation.....
• When the right claimed is 'continuous and apparent', may not need prior diversity of occupation (this is a contentious area!)

1. P&S Platt v Crouch 2004 Court of Appeal, Peter Gibson LJ: 'The rights were continuous and apparent, and so it matters not that prior to the sale...there was no diversity of occupation of the dominant and servient tenement.'

2. Kent v Kavanagh 2007 Court of Appeal: reiterated the House of Lords Sovmot Investment v ** for the Environment 1979 requirement for prior diversity of occupation of dom and serv.

3. Campbell v Banks 2011: CoA didn't need view on prior diversity. Not satisfied on facts.

4. Hanford v Allaford 2011: Court of Appeal accepted that prior diversity of occupation was necessary BUT there was an exception where continuous and apparent can be shown. 

Sovmots HoL's need for prior diversity vs P&S Platt CoA no need for prior diversity (required to follow HoL's precedent but take into account CoA and can argue. The law remains unclear....!!

 Further Conditions for s62 to operate: 

a. Right must be capable of being an easement (per Re Ellenborough Park)

b. No application where privilege purely temp nature/very intermittent (per Wright v Macadam)

c. Precluded where evidence of contrary intention (s62(4) LPA 1925, per P & S Platt) express or circumstances such as a fence over area of claimed easement showing contrary intention!

2. EXPRESS RESERVATION: (same rules as express GRANT)

Definition: express reservation of a legal easement

All 4 required for express easement:

1. Duration equivalent to fee simple or leasehold - s1.(2)(a) LPA 1925

2. Created out of legal estate (NOT EQUITABLE)

3. Granted by deed - s.51(1) LPA 1925

4. Completed by registration (if registered land)

or if can't meet legal easement....

Defintion: Express reservation of an equitable easement:

1. Valid contract for the creation of the easement complying with s2. LP(MP)A 1989 (Contracts for sale of land to be made by signed writing) Equitable only available in express.

2. IMPLIED RESERVATION: 2 MAIN METHODS

- Much more limited then grants. If you are in control of a transfer, the law thinks as the person able to, you should expressly insert these rights in and the law is very unwilling/unforgiving!

1. Wheeldon v Burrows, LJ Thesiger: 'if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant'...

a. Necessity: same as for grant. 2. Manjang v Drammeh 1990 Privy Council case: alternative method of access by river so NOT a necessily (VERY STRICT). see grant cases for necessity too

b. Common Intention: much stricter rules for reservation than for grant. When claiming reservation of easement, need to show common intention that easement should be reserved rather than enjoyment of land as with grants. 3. Re Webb's lease 1951 Lord Evershed: grantor claimed implied reservation to maintain advertising boards outside premise leased but failed to show common intention, seeing them was not enough on its own! 'prove affirmatively that such reservation was clearly intended by him and his grantee at the time of the grant'...

Wheeldon v Burrows and section 62 CANNOT BE USED FOR RESERVATION

Registered Land:

EXPRESS:

LEGAL easement created expressly: once registration requirements complied with (ss27(1),(2)(d),Sch.2 para 7(a),(b) LRA 2002) = legal easement protected

EQUITABLE easement created expressly: only if entered a 'notice'(ss29,32,33 LRA 2002) = equitable easement protected

IMPLIED:

LEGAL easement created by implied methods = overrides subsquent disposition of servient land if comply with: Sch.3 para 3 LRA 2002 (Unregistered interests which override registered dispositions) :

• a. known to person to whom disposition is made
• b. obvious on a reasonably careful inspection of land
• c. exercised within the year before the disposition

Reform/Recommendations:

1. Abolish distinction between implied grant and reservation

2. Replace IMPLIED methods with ONE statutory method 'necessary for reasonable use'

3. Stop section 62 converting precarious permissions into easements

4. Ask: How easy is it to acquire easements? Do these recommendations make sense in a modern day? 

5. The Law Commission (No 186) 'EASEMENTS, COVENANTS AND PROFITS À PRENDRE: A CONSULTATION PAPER: March 2008. The Honourable Mr Justice Etherton, Chairman

6. The Law Commission (No 327) 'MAKING LAND WORK: EASEMENTS, COVENANTS AND PROFITS À PRENDRE. June 2011. The Right Honourable Lord Justice Munby, Chairman

7. Other academic commentary (see previous)

• Recommendations that modernise and simplify the law, removing anomalies, inconsistencies and unnecessary complications where they exist to make fit for the needs of the twenty-first century and a modern registration system. Draft Law of Property Bill included.
• Simplify and make clearer the rules relating to the acquisition of easements by prescription (or long use of land) and implication, termination of easements by abandonment;
• Greater flexibility to developers to establish the webs of rights for modern estates to function;
• Facilitate the creation of easements that allow a substantial use of land by the benefiting owner (for example, rights to park a car)
• Expand the jurisdiction of the Lands Chamber of the Upper Tribunal to allow for the discharge and modification of easements and profits created post-reform.
• Easements are ancient rights; the details of the law worked out far from 21^st century.
• Implication of a single statutory principle that easements will be implied where they are necessary for the reasonable use of the land at the time of the transaction. What is necessary for the reasonable use of the land is to be determined through five factors that incorporate the most useful features of the current law: (1) The use of the land at the time of the grant. (2) The presence on the servient land of any relevant physical features.(3) Any intention for the future use of the land, known to both parties at the time of the grant.(4) So far as relevant, the available routes for the easement sought.(5) The potential interference with the servient land or inconvenience to the servient owner.