#2022 - Reform Of The Law Of Easements - Land Law

Reform of the law of easements

Characteristics of an easement : Law Com CP 186 (2008)

• Need for Dominant and Servient tenement

  • At the moment, you need a dominant land to attach easements over a servient land to.

    • Proposed that should allow “easements in gross” i.e. easements over a servient land

      • e.g. right to place power cables or right of way over land to reach helipad that belongs to neither Dom or Serv.

    • Problems:

      • Easements in gross = clogs to title

        • LAW Com: Only allow express creation and make sure easement registered w/ right allowed and person entitled to enforce it

        • Problem = nature of easement = runs with land, not person – would this mean that Z would have to re-create express easement w/ Y if land transferred from X to Z?

      • Lead to servient land being burdened by excessive use

    • Overall = keep rule

      • Rule is certain

      • Statues already get round problem in appropriate cases (e.g. laying utilities)

      • Don’t want to allow easement to be given for anything.

• Accommodation

  • Retain current law b/c

    • Well understood

    • Prevents unnecessary burdening upon land by imposing personal rights into land rights

    • Needs to be available, unlike for leases,

      • b/c leases are temporary in nature

        • whereas easements can be indefinite.

        • Problem = leases can be pretty long

          • And rights within leases can be converted into easements through s.62

          • If not a problem of leases, why problem for easements w/ freehold land in general?

• Owned/Occupied by different people

  • Should adopt that proposed by Scot Law Com:

    • Where two plots w/ easements fall into common ownership

      • Easements should not be extinguished

        • But should become “latent” until plots fall back into common ownership.

  • Problems:

    • Might be difficult to discover “latent” easements =problem for future purchasers

      • Implied grants work already under Wheeldon v Burrows, would perhaps be unnecessary change?

• Capable of Grant

  • Too wide and vague?

    • Current law requires that right be sufficiently defined

      • E.g. doesn’t allow “freeflowing of air” only “right of way across road A”

    • Law Com: 4^th limb appropriate b/c

      • Avoids personal benefits becoming easements

      • Promotes clarity

      • Ensures degree of connection between land and right being granted

  • Easements and exclusive use

    • Wright v Macdam:

      • Not infringing on servient land if using small coal shed in big servient land

      • Different where X actually given exclusive use of large part of servient land.

    • Montcrieff v Jamieson

      • Analysis rejected –ouster should not look at what proportion of land Dom is seemingly possessing and allowing it where only small amount possessed

        • But look at whether Serv can still reasonably use land that has easement over it.

      • Lord Scott: does Serv retain possession and subject to reasonable exercise of right control of Servient land

        • Law Com: not particularly helpful – prefer Lord Neuberger’s objections.

    • Law Com:

      • Q should be = “what can Dom do?” NOT “what can Serv do?”

        • Right must therefore be clearly defined

        • And must be clearly limited in scope

          • Essentially, right for water, storage, parking etc. would be allowed to be easements

            • As long as clearly defined and clearly restricted in scope

        • BUT just b/c right can’t be a tenancy, right to exclusive possession, w/o more, will not defeat easement

          • Otherwise, have illogical problem of X being allowed to park car in space where 2 can be parked, but not in space where only one can be parked.

Implied Grant of Easements: Law Com CP 180 (2008)

• Implied grant and implied reservation

  • No more distinction between grant and reservation

    • If X wants to say that they have an easement it should be up to them to prove it

      • It should make no difference whether they (or their predecessors in title) were grantor or grantee

• Wheeldon v Burrows Rule

  • Should apply to both implied grants AND implied reservations.

• S.62 rule

  • Law Com:

    • Number of problems with this provision:

      • Can only be expressly excluded so is a trap for the unwary and those without proper advice

      • Has a tendency to transform mere licenses into easements

  • Proposal = reform by removing the “transformative” section

    • So that licenses don’t turn into easements

    • Problem:

      • Why can’t they just exclude any rights that don’t want to be transferred? Is clear in application.

      • Gives some permanence to licensed arrangements – otherwise L can strip rights when they wish

      • Only applies where permission is not temporary –arguably should protect expectations of grantee by providing device of permanence.

• Easements of necessity:

  • Law Com:

    • 3 drawbacks w/ current implementation:

      • First, landowners who face considerable and disproportionate expense or difficulty in managing their property, but for whom an easement is not an absolute necessity, may not be able to gain an implied easement.

      • Secondly, the requirement that the necessity exist at the time of the grant may leave landowners vulnerable to subsequent, perhaps unforeseeable, changes.

      • Thirdly, the final potential problem is the uncertainty of duration

Options for Reform:

• Intention based approach

  • Law Com: but likely inappropriate e.g. Wong where parties didn’t put their minds to question

    • Thus court would be asked to impute parties’ intentions when none actually there

• Presumption approach:

  • Intention is presumed in three circumstances

    • Where no express right of way, presumption is that parties intended granted land to have right of way

    • Where land retained and...