Easements
An easement is a right enjoyed by one piece of land /property land over another piece of land/property. It places a burden on the latter land (known as the servient land) and is for the benefit of the former land (the dominant land).
An easement is a private right. There are similar public rights, such as public rights of way and statutory easements created pursuant to legislation.
Common easements include
- rights of way
- rights to light
- right to support
- right to park
- right to the passage of services
- right to the passage of air
Some easements are positive in nature in that they allow the owner of the dominant land to enter the servient land for a particular purpose for the benefit of the dominant land. The most prominent example is a right of way.
Other easements are said to be negative. They do not involve the same level of obstruction or interference and are more passive e.g. a right to light or support
Easements are property rights and the benefit and burden pass with the respective dominant and servient lands. They are enforceable by and against subsequent owners of the respective lands
Requirements for Easements
An easement requires that there be
- dominant (benefited) land and servient land (burdened)
- the benefit should accommodate the dominant land as such in the sense of giving it some practical benefit; the benefit must not be merely personal; the lands are usually adjacent or nearby
- there must be different owners or occupiers of the dominant land and servient land; where the lands come into common ownership and occupation the easement is presumed to be discharged
- the easement must be capable of being the subject of a grant
The latter requirement requires that there be a minimum degree of definition. There are several well-established categories of easement. Although the categories are not closed, the courts are reluctant to extend them. Any new types of easements must be within the broad scope and characteristics of existing categories of easement.
The easement should not generally involve the outlay of money by the servient owner. The right should not be such as to be tantamount to ownership of the servient land.
When the easement was granted or arose the respective dominant and servient owners must have had the legal capacity to receive and grant the easement
Creation by Grant of Implication
Easements may be created expressly or by implication. They may arise by long use; so-called prescription.
An easement may be granted over retained land when land is transferred or sold. It may be excepted from sold land in favour of retained land at that time or there may be mutual easements granted and excepted over and for the benefit of each of the sold and retained lands,
Where the servient land is registered in HM land Registry, the easement granted must be registered as a charge on it.
Easements may arise by implication in the context of the grant of land. In the case of granted land, easements over retained land are more readily implied. They may be implied where they give effect to the intended benefit of the sold/transferred lands
Easements for the benefit of retained land will only arise where absolutely necessary such as to prevent land being landlocked. Accordingly, it is critical that the grantor expressly reserves any desired easements.
Easements may be included by implication under the Law of Property Act by which so-called quasi-easements already in existence are presumed to pass on transfer. The Law of Property act applies to all conveyances of registered or unregistered land. They are deemed to include all easements rights and advantages appertaining to or reputed to appertain to the land or any part of it at the time of conveyance or enjoyed with the land or any part of it.
There is a common law principle which presumes that existing quasi-easements pass and are crystallised on sale in favour of the purchaser/transferee. Under this principle, the quasi-easement must be
- continuous and apparent
- necessary for the reasonable enjoyment of the land
- nut excluded expressly or impliedly
The principle does not apply to easements in favour of the grantor for retained land.
Long Use
Under the doctrine of prescription, easements may be acquired by continuous long use. 20 years’ continuous use is usually required. The use must be as of right as if the user was entitled to the easement throughout the period. It must be without force and without permission. Consent negates user as of right.
In England, the principle of prescription applies as between freeholders. It is not generally available for or against leaseholders.
There are three methods of establishing prescription. Two depend on fictions developed at common law. However, they are subject to being defeated by counter-evidence.
The Prescription Act 1832 made certain amendments to remove the defences to common law easements. 20 years use buyers the servient owner from raising certain defences. 40 years’ use creates an easement subject even in some cases where there was oral permission. There are different rules for the acquisition of an easement for a right to light
Registration and Enforcement
Legal easements are overriding interests. They affect registered land without registration. However,. where they arise by grant, they are usually registered in the Charges Register in HM Land Registry. Equitable easements should be protected by a notice in HM Land Registry.
As of the commencement of the Land Registration Act 2002 in October 2003, the position has changed slightly. Overriding easements upon commencement of the legislation retained their status as such. Thereafter unregistered easements that are not known or discoverable by a purchaser or had not been used in the previous year do not override and accordingly must be registered
Legal easements affect unregistered titles land per se. Equitable easements should be registered in the Land Charges register to be binding against third parties
Easements may be enforced by legal action. In some cases, self-help is permitted by way of abatement so as to remove, for example, an obstacle. Generally, court action is required.
Easements can terminate by release or by abandonment. Abandonment may be inferred after a long period of non-use.
