Easement

Easements in English law are rights that one individual has over another's land. Rights recognised as easements most frequently include rights of way or light, and extend as far as the right to use a neighbour's lavatory, or to park a car on their land. The necessity of easements can be recognised by the Law Commission's recent findings that there are easements over at least 65% of registered freehold titles. In some circumstances for example, it may be impossible for one land owner to access a public highway without an easement of a right of way. The creation of easements is usually done expressly by deed, but easements may be implied where they are necessary, or would be reasonably expected to be held by a land owner, an approach which is not altogether uncontroversial, and has been the subject of recent reform proposals.

Characteristics of easements

Whilst an easement is essentially a right over another's land, any right claimed as an easement must satisfy the common law definition, outlined in the case of Re Ellenborough Park. Here, Danckwerts J laid out essential characteristics of an easement:

There must be a dominant and a servient tenement;
The easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit;
The dominant and servient owners must be different persons;
The right claimed must be capable of forming the subject-matter of a grant.
The first requirement – that there must be two distinct plots of land affected – is central to the definition of an easement. A right of way granted to an individual is granted in their capacity as a land owner; if a right of way is granted to an individual who is not a land owner, it is merely a license.


Creation of easements

The creation of easements is usually expressly carried out through a deed, though the courts may also find that certain rights are either necessary or implied for the proper enjoyment of land. Additionally, an easement may be implied following the continuous use of land in a hostile and open manner, following a period of at least twenty years.

Implied grant

There are several circumstances where the grant of an easement may be implied, usually occurring on the conveyance of land. Where land is transferred, subject to contrary intention, existing easements are automatically conveyed under Section 62 of the Law of Property Act 1925. Additionally – and controversially in some cases – 'precarious' rights, such as licenses or personal rights may be transformed into legal easements, as demonstrated in International Tea Stores Co v Hobbs. In this case a right of way granted as a license by a land owner was transformed into an easement, following the conveyance of land into a legal estate. A limitation of Section 62 is that it does not act to imply reservation easements; for example, a land owner in common ownership of two plots of land could not claim that, after selling one plot, his remaining plot should have an easement for right of light implied. Other circumstances where easements may be implied are where they are necessary for the enjoyment of land. Where a plot of land is fully land locked from a public highway, an easement for a right of way will likely be implied, through necessity.

Prescription

Where a right has long been enjoyed by a land owner, it may be prescribed as an easement following a dispute by the owner of the servient tenement. In order for a right to be prescribed it must meet the criterion of an easement, and the claimant must be able to show the use was not by force, stealth, or by permission, and continued for a period of twenty years.Whilst it is not a requirement that a land owner not be aware of such a use, if the user has reason to believe that the land owner both knows of and objects to their use, this will prevent prescription taking place.It has been stated that:

"A landowner who wishes to stop the acquisition of prescriptive rights must not acquiesce and suffer in silence"

Transfer of legal easement

The benefit of a legal easement will pass to the next owner of that tenement without express words. This was the position of the common law and is now reflected in both sections 62 and 187 of the Law of Property Act 1925. If the dominant tenement is leased, even if only at equity, the benefit of the legal easement will still pass to the lesee and it will remain an easement at law albeit one enforceable by the lessee in equity only.

Equitable easements

Equitable easements have the same basic requirements as easements at law concerning their subject matter. Easements are recognised as arising in equity in at least three circumstances.The first is where section 1(2)(b) of the Law of Property Act 1925, requiring and easement to be "absolute in possession or a term of years absolute", renders an easement incapable of existing as an interest at law. This includes easements for periods of uncertain duration, such as those ending when a particular event happens (the passing of planning permission over one of the tenements, for example). More controversially this category also includes easements for life, similarly incapable of existing at law. Although the topic has not arisen in the courts since at least 1925, it is difficult to show that as easement for life accommodated the dominant tenement, since it is inherently personal in nature. Rights purporting to be easements for life would, if they were rejected as easements, be licences instead and take effect through contract. The second category involves those cases where an specifically enforceable contract to create an easement has taken effect but the easement has not been granted. Here, the regular principles of equity will operate to bring about an easement, since "equity regards as done those things which ought to be done".The third category is where the grantor holds only an equitable interest himself. The most common occasion where this will happen is where an easement is created by operation of a testamentary disposition. Where there is a will, legal title vests in the executors of the estate until transferred to the deceased's personal representatives, but any devised interests operate at equity from the time of disposition.

A fourth category, equitable easements arising by virtue of proprietary estoppel, is contested. Cases such as ER Ives Investments Ltd v High and Crabb v Arun District Council have been offered in support of their existence; however, some commentators prefer to analyse these cases as giving rise to a right distinct from an easement or a legal easement respectively. This makes an important difference when it comes to binding third-party purchasers.

Where land is registered, as in now common, there are further circumstances where an equitable easement will arise. Where both the dominant and servient tenements are registered, easements must be registered against both titles under the terms of the Land Registration Act 1925. Failure to do so will render them easements in equity only, although they will still bind purchasers under rule 258 of the Land Registration Rules 1925.Where the servient land is unregistered, it is likely that the easement will not have to be registered against the dominant title, even if that is itself registered land. This has been disputed, however, and is significant because if legal would bind successors after first registration whereas an equitable easement would require registration as a land charge. Rule 250(1) allows for easements to arise in equity through prescription where the title is registered, but a right arising through prescription would be created as a legal easement and there seems to be no part of this process where the owner of the dominant tenement has a right in equity only.

The benefit of an equitable easement passes with the transfer of the dominant tenement.Whether section 62 of the Law of Property Act 1925 can operate to turn an equitable easement into a legal easement upon conveyance of the dominant tenement is unclear. On the one hand, it would seem odd that a mere licence could become a legal easement through the section, when the much closer equitable easement could not; on the other hand, construing the section in this way is unnecessary from the perspective of the purchaser, since a right enforceable in equity will be almost as useful as one enforceable at common law.

An equitable easement when the servient tenement is unregistered is enforceable against a purchaser for value only when properly registered under the terms of the Land Charges Act 1972. Equitable easements arising by virtue of a contract to grant an easement are registerable as either estate contracts or equitable easements.Where the servient tenement is registered, the registration of an equitable easement at the Land Registry can take place through mere notice or caution and will then bind purchasers. Alternatively, it will still bind purchasers if it constitutes an "overriding interest". As confirmed in the case of Thatcher v Douglas, section 70(1)(c) of the Land Registration Act and rule 258 of the Land Registration Rules 1925 will operate to ensure that almost all equitable easements constitute overriding interests.
It is to be noted that an easement legal or equitable depends on its form and metod of creation.Easement may be created (1)Expressely or impliedly by grant or reservation(2)The rule in Wheeldon v Burrows,section 62 of L.P.A 1925(when land is transferred) and Prescription(through long use) may also create easement from lesser rights,interests and behaviour.In case of justifying an easement there will be more than one methods.Creation of easement may be listed like-
(1)Expressely created easement(express reservation+express grant)
(2)Impliedly created easement[implied reservation(easement of necessity+intended easement)+implied grant+presumed grant or prescription]
(3)Easement by the rule of Wheeldon v Burrows
(4)Easement by the section 62 of L.P.A 1925


Legal easement-For being an equitable easement it must be held for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute and must be created by(1)Statute(2).deed or registered disposition(3).Or by prescription
Equitable easement-Generally easement held for a period rather than a fee simple absolute in possession or a terms of year absolute must be equitable.An easement also be equitable if it has not been create by one of the three methods of creating legal easement.Equitable easement may be created by a written contract which may be enforceable by section 2 of L.P Act 1989,Walsh v Lonsdale,or by proprietary estoppel.An equitable easement is registerable under the LCA if the land is unregistered,and capable of entry on the land register if the land is registered
Reservation-Where the vendor of land reserves a right of way over the land sold.
Grant-Where the vendor of land grant the purchaser a right of way over the remaining part of land.Reservation and grant both may be implied or express.