#1962 - How Do You Create An Easement - Land Law

How do you create an easement?

Express creation

• LP(MP)A 1989 s.2(1)Deed required in order to gain a legal interest in land

• Writing required in order to gain equitable interest

  • Entry of notice required for Servient land (presuming registration)

  • Easement also has to be registered to title of Dominant land

• These easements transfer automatically on transfer of the Dominant land

  • St Edmundsbury & c v Clark [1975]:

    • And there is no problem of transfer just because only part of the Dominant land is transferred.

Prescription

• Land must have been used for 20 years by same user

• And use must not have come from force, stealth or permission – only acquiescence

Implied Easements

• These are implied into a deed of conveyance or lease and have the same effect of expressly granted easements

  • Implication will take place where the grantor owns two plots and sells or leases one of them to the grantee

    • Vendor (Grantor) will look for implied reservation

    • Purchaser (Grantee) for implied grants

• When both plots sold, implication takes place if both plots sold at same time (not necessarily conveyance together)

  • Each purchaser gets implied grants against each other.

Implied Reservation

• This is when the grantor reserves some rights to himself having transferred the plot of land to the grantee

  • Must be express

    • Wheeldon v Burrows (1879): X sells land to X, then workshop facing land to Y. Y attempts to stop X building and blocking his light.

      • Thesiger LJ:

        • Rule 2 = if the grantor intends to reserve any right over the tenement granted,

          • it is his duty to reserve it expressly in the grant.

            • Only exception is where easement has to be reserved by necessity

    • Re Webb’s Lease [1951]: L granted tenancy to T. Later granted lease to T, including outer walls. On outer walls = sign advertising L’s business. L had not expressly reserved right, tried to imply it.

      • Evershed MR:

        • Fact that T might have knowledge of L’s intentions to reserve rights is irrelevant

          • Only if L expressly reserves right, or proves that right is one that must be reserved through necessity

            • Will any rights be reserved over granted land.

  • However, it can be proved where:

    • Reservation necessary in narrow sense

      • i.e. Remaining land of Grantor cannot be used without the easement (e.g. land locked so needs right of way)

        • but not if any way of accessing even if inconvenient.

    • Reservation necessary in wider sense

      • Wong v Beaumont Property Trust Ltd [1965]: Lease of cellars was for restaurant use – when restaurant expanded, needed ventilation system fitted.

        • Lord Denning MR:

          • The law will imply a grant or reservation of such easements

            • as may be necessary to give effect to the common intention of the parties granting

              • with reference to the manner/ purposes for which the land granted is to be used.

          • But essential that the parties should intend that the grant should be used in some definite manner – not just one which may involve this definite use.

Implied Grant

• Wheeldon v Burrows [1879]:

  • Thesiger LJ: Implied grants of easements will occur where (quasi) easements are

    • Continuous and apparent

      • E.g. rights to light, drainage, support

      • Borman v Griffith [1930]:

        • Maugham J:

          • Where 2 properties belonging to X about to be granted have plainly visible road existing over the one for the apparent use of the other,

            • and that road necessary for reasonable enjoyment of the granted property

              • a right to use the road will pass with the quasi-dominant tenement, unless that right is excluded:

          • Fact that not “continuous” irrelevant where obvious right necessary for reasonable enjoyment of land.

      • Smith: seems to overlook “continuous” requirement as unnecessary here

        • Thus, available if continuous or where feature on Serv land that indicates there is a right

    • “Or” necessary for reasonable enjoyment (or both?)

      • Smith: much weaker than “necessity” required for implied reservations

      • Goldberg v Edwards [1950]: House can be accessed via L’s house or outside passage. L allows X to use house passage. L leases house to Y, Y refuses to allow passage thru house.

        • Evershed MR:

          • Implied grant only applies where right of way necessary for reasonable and convenient enjoyment of property

            • Here, right of way not at all necessary for reasonable enjoyment b/c alternative pathway just as good.

    • Time of exercise

      • If right exercised in recent past, but not at time of grant

        • Then this should be sufficient and no need to take literally.

• Limits on Wheeldon v Burrows rule:

  • Contrary intention

    • Squarey v Harris-Smith [1981]: contract contained standard term that excluded claim to right of way, even though neither party had not given clause any thought.

      • Held Test will yield where evidence of contrary intention to the granting of rights – thus standard term sufficient to rebut granting.

  • Diversity in occupation?

    • Kent v Kavanagh [2006]:

      • Chadwick LJ:

        • Wheeldon v Burrows easements are confined, in their application, to cases in which, by reason of the conveyance (or lease),

          • land formerly in common ownership ceases to be owned by the same person.

    • Smith:

      • Odd that this should be the case –

        • Wheeldon is common law principle predating s.62, strange that can’t apply to cases of diversity

        • Several cases discuss both tests implying that both have application to diversity

        • S.62 doesn’t apply to contracts – if Wheeldon has no application to cases of diversity

          • This implies that no rights can be implied into contracts where diversity = perverse result.

  • Do we need both strands to be satisfied?

    • Smith: test of necessity derives from old idea that grantor shall not derogate from grant

    • Test of continuous and apparent = from French Law

      • Unfortunately, Thesiger LJ achieves a formulation that incorporates both tests...

        • Perhaps solution = that both strands = guidelines as to when denial of easement will deny grant

          • Thus, continuous yet frivolous grants shouldn’t be applied if not reasonably necessary

          • And if reasonable and necessary, right need not have to be continuous nor apparent.

Implication under general words (Law of Property Act 1925 s.62)

• LPA 1925 s.62(1):

  • Conveyance of land shall be deemed to include and convey with land

    • All ways, waters, liberties, privileges, easements rights and advantages

      • Appertaining to the land/part of the land

      • OR At the time of conveyance

        • Demised, occupied or enjoyed with... the land

  • Smith: means that if Grantor gives permission for Y to do something akin to easement

    • And then land is subsequently transferred/lease renewed

      • Previously revocable permission will be turned into an easement

      • Easements need not be “reasonably necessary for enjoyment” nor “continuous and apparent”

• Restrictions:

  • Right must be capable of being easement or profit

    • Thus, if use is dependent on permission each time from Grantor that right be exercised,

      • Then this doesn’t fall within category of easements

  • S.62 only applies to conveyances, not contracts

    • Maugham v Griffiths [1930]:

      • Maugham J:

        • An agreement that is not made in a deed is not a conveyance, as it is not an “assurance of property” per LPA 1925 s.205(1)(ii)

        • S.62(1) only applies to conveyances

          • Therefore, s.62(1) only applies to imply easements into conveyances, not into contracts.

    • Smith: Thus, if the contract is silent about the application of s.62, then the vendor can insist on excluding its application from the subsequent conveyance.

      • Note that Maugham J then used Wheeldon v Burrows on the agreement instead.

  • Permission to exercise right must not be contingent on set of circumstances existing

    • Goldberg v Edwards [1950]: e.g. that right to use house access only available while Landlord retained possession of house – when Landlord leases house out, no longer permission b/c no possession.

      • Evershed MR:

        • If privilege granted here was not temporary, like, for instance, a temporary right of light when it is obvious that buildings shortly to be erected will obscure it.

          • Then if right was one which was being enjoyed at the time of the conveyance, it is covered by s. 62

      • Smith: means that application of s.62 occurs where permission is continuous but revocable

        • But not where permission is temporary or contingent on set of facts

  • S.62(4): Contrary intention available

    • Thus, evidence of contrary intention can rebut s.62(1) application

      • But this must be “expressed in the conveyance”

        • Meaning that unlike Wheeldon rule, prior understanding of parties will not suffice to be contrary intention

  • Permission must be towards the land, not a specific person or user

    • Goldberg v Edwards [1950]:

      • Evershed MR:

        • Have to be careful not to give rights that are purely personal the protection of s.62.

          • Only where right is given through the lease should be given effect by s.62.

  • S.62 only applies where there has been prior diversity of occupation on servient and dominant lands???

    • Sovmots v Sec of State [1979]:

      • S.62 does not fit this case.

        • The reason is that when land is under one ownership cannot speak of rights or easements being exercised over one part for the benefit of another.

          • Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation,

            • the condition for the existence of rights does not exist.

    • Platt v Crouch [2003]: X owns 3 plots of land accessible through each other. X sells land w/ hotel onto Y. Y claims easement of right of way to X’s land.

      • Peter Gibson LJ:

        • If there is an explicit agreement that ancillary...