An easement is the right to use someone else’s land. Examples include a right to travel across land or park a car on it. For use to qualify as an easement, it must meet the following requirements: Re Ellenborough Park [1956] Ch 131
If an easement exists, its owner will not be liable in trespass or nuisance for exercising their right, unless they go beyond its scope. Going beyond the scope of an easement is known as ‘excessive user’: McAdams Homes v Robinson [2004] EWCA Civ 214.
An easement is the right of one landowner to use another’s land. This means that there must be two parcels of land owned/leased and occupied by different people. The ‘dominant’ tenement is held by the person who takes the benefit of the easement. The ‘servient’ tenement is the land they are entitled to use.
The easement attaches to the relevant estates in both parcels of land. It cannot exist ‘in gross‘ – as a free-floating right transferable separate from land. Similarly, it is not possible for the dominant landowner to extend the benefit of the easement to cover any additional land they later acquire: Harris v Flower (1904) 74 LJ 127. They must keep to the terms of the original grant: Peacock v Custins [2002] 1 WLR 1815.
The two estates in the two parcels of land must be owned and occupied by different people. If the dominant owner gains ownership of both parcels of land, any easements will be extinguished. If dominant owner leases the servient land, the easement will be suspended until their occupation ceases.
It is not enough for the use to benefit the particular dominant landowner. It must benefit the dominant land and so be useful to anyone who might own it – Moody v Steggles (1879) 12 Ch D 261.
Relevant factors include whether the use enhances the dominant land’s value or normal use: Re Ellenborough Park [1956] Ch 131. This depends on the nature and particular characteristics of the dominant tenement.
There must be a degree of physical proximity between the two lands, though they need not be adjacent: Re Ellenborough Park [1956] Ch 131.
Historical cases denied that purely recreational use might benefit dominant land: Re Ellenborough Park [1956] Ch 131. Modern cases acknowledge, however, that they might, where the character of the dominant land is recreational: Regency Villas v Diamond Resorts [2018] UKSC 57.
This requirement has four sub-requirements: Re Ellenborough Park [1956] Ch 131.
The grantor must have capacity to make a grant, and have the estate necessary to grant the easement.
The scope of the right must be sufficiently certain. For example, one can have a right to use a specific path, but not a right to wander anywhere on the land. Open-ended rights, such as a general right to air or a view are not valid subject matter: Hunter v Canary Wharf [1997] AC 655.
The right must impose no positive burden on the servient landowner. E.g. a right of way cannot include an obligation to repair the path: Duke of Westminster v Guild [1985] QB 688. However, the dominant owner may gain an ancillary right to enter and enact repairs themselves: Regency Villas v Diamond Resorts [2018] UKSC 57.
The right must not substantially deprive the servient landowner of possession or use of the land. This is particularly important for parking and storage easements: compare Copeland v Greenhalf [1952] Ch 488 and Moncrieff v Jamieson [2007] UKHL 42.
An easement can be granted, or it can be reserved. Grant happens when a landowner gives another the right to use their land. Reservation happens where a landowner sells their land to another, but reserves the right to use that land after the sale.
There are three ways an easement can be acquired:
A legal easement can be expressly granted by deed. If it is granted after 13 October 2003, it will not be valid unless registered. An equitable easement can be granted by a more informal agreement, or arise due to proprietary estoppel. However, an equitable easement is incapable of being an overriding interest, so it will not bind subsequent purchasers unless it is registered.
There are four ways an implied grant or reservation can happen:
An easement is implied by necessity where 1) the a landowner owns two plots of land; 2) one of those plots requires access to the other to get to the public highway; 3) the landowner disposes of one of the plots without any express grant or reservation of access; and 4) there is no contrary intention: Manjang v Drammeh (1991) 61 P & CR 194. This method does not apply if there is alternative access to the dominant land, even if it is inconvenient or impractical: Union Lighterage Co v London Graving Dock [1902] 2 Ch 577.
The courts will find an implied intention to grant an easement in two limited circumstances: Pwllbach Colliery v Woodman [1915] AC 634. The first is where the easement is necessary to enjoy some expressly granted right. The second is where the easement is necessary to use the land for the purpose for which it was bought or leased. There must be a ‘common intention’ of ‘some definite and particular use’: Stafford v Lee (1993) 63 P&CR 172. A reservation will be implied where it is a necessary inference from the facts – the existence of an easement must be the only possible explanation reasonably consistent with the facts: Re Webb’s Lease [1951] Ch 808.
Wheeldon v Burrows (1878) 12 Ch D 31 applies where part of the land is sold or leased. It applies only to grants, not reservations. The land sold or leased comes with all continuously and apparently used ‘[quasi-]easements…necessary for the reasonable enjoyment of the property granted’ (Wheeldon). These rights did not pre-exist the sale, since an easement requires two different landowners – hence they are ‘quasi-easements’.
For example, an easement might arise if B has been using a driveway to get between two parts of their land, and then leases the second part to C.
Unlike the ‘necessity’ method of grant, it is not necessarily fatal that there is some other means of access, though it can be relevant to what is necessary for reasonable enjoyment of the land: Goldberg v Edwards [1950] Ch 247.
s.62 of the Law of Property Act 1925 states that land conveyances ‘include and shall by virtue of this Act operate to convey’ certain features of the land, including easements, unless the conveyance expresses contrary intention. This applies only to legal dispositions of land.
The courts have interpreted this provision to upgrade informal permissions into easements where parcels of land were previously in common ownership. For example, in International Tea Stores v Hobbs [1903] 2 Ch 165, the defendant let the shop adjoining his forge to the claimants. He also let them use the forge’s private road to access the shop’s rear. He then sold the shop to the claimants, but refused to let them keep using the road. The court held that even though the claimants were merely permitted to use the road previously, they now had an easement allowing them to continue using the road.
The rules in Wheeldon v Burrows and s.62 look very similar. However, there are three key differences between them.
Firstly, Wheeldon applies only where the two pieces of land were previously in common ownership and occupation. s.62 normally applies where there was common ownership, but diverse occupation. However, s.62 can apply to common ownership/occupation scenarios – Wood v Waddington [2015] EWCA Civ 538.
Secondly, s.62 applies only to legal dispositions, whereas Wheeldon can apply to equitable dispositions. Since s.62 has broader scope than Wheeldon, Wheeldon tends to only be relied on in the absence of a legal disposition.
Thirdly, a greater range of rights can be crystallised into easements by s.62 than Wheeldon. s.62 does not require the right to be continuous, apparent, or reasonably necessary for enjoyment of the land.
Its main limitation is that the right must be capable of existing as an easement under the normal rules: Phipps v Pears [1965] 1 QB 76. s.62 may also fail if the permission was purely personal or temporary: Goldberg v Edwards [1950] Ch 247.
An easement can also be acquired by long use, provided the use is open and exercised without permission or force (or in defiance of the landowner’s objections – Smith v Brudenell-Bruce [2002] 2 P&CR 51): R v Oxfordshire County Council ex part Sunningwell Parish Council [2000] 1 AC 335.
There are three routes to acquiring a right by prescription.
This requires the claimant to show they have used the land since 1189. This is obviously very difficult. Accordingly, this route is rarely relied on.
This requires the claimant to show that they have used the land for 20 years. It does not matter whether the use was recent or not.
This prevents the servient landowner from contesting a ‘time immemorial claim’ where the claimant can show 20 years’ use immediately prior to proceedings. This crystallises into an absolute right after 40 years use immediately prior to proceedings.
Prescriptive use can only be made by and against a freeholder. It is not possible, therefore, for a leaseholder to gain an easement by prescription against his landlord or anyone else: Simmons v Dobson [1991] 1 WLR 720.
An easement can be terminated if:
A profit a prendre is like an easement, but instead of getting to use the land it allows the interest-holder to take something from the land. For example, it might allow the interest-holder to take fish from the landowner’s lake. They are granted in the same way as easements.
There is an exception to this for a right to take water: this qualifies as an easement, not a profit a prendre.
A significant difference between easements and profits is that profits can exist ‘in gross’. This means that it can exist for the benefit of a person, not land. The interest-holder does not even need to be a landowner. A profit in gross can be entered as a notice in the Land Register, and can be alienated independently of any land. A profit in gross cannot be acquired under the Prescription Act 1832.
