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

o Entry of notice required for Servient land (presuming registration)o Easement also has to be registered to title of Dominant land

These easements transfer automatically on transfer of the Dominant lando 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

o 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)

o 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

o 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:

o 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:

o 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.o 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)o 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.

o 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 o 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]: o 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]:

o 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

o 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

o 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.

o 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

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

Limits on Wheeldon v Burrows rule: o 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.

o Diversity in occupation? Kent v Kavanagh [2006]:

Chadwick LJ:o 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 –

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

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

o 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.

o 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...

o 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): o 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

o Demised, occupied or enjoyed with... the lando 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:o 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 easementso S.62 only applies to conveyances, not contracts

Maugham v Griffiths [1930]: Maugham J:

o 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)

o 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.

o 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:o 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

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

o 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”o Meaning that unlike Wheeldon rule, prior understanding of

parties will not suffice to be contrary intention

o Permission must be towards the land, not a specific person or user Goldberg v Edwards [1950]:

Evershed MR:o 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.

o 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.

o 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:o If there is an explicit agreement that ancillary rights are to

come to an end on transfer Then easy to see that s.62 would have no applicability

o But if evidence is clear that the rights in question did appertain to and enjoyed with the hotel,

Then rights were continuous and apparent, and therefore doesn’t matter that there was no prior diversity of occupation of the dominant and servient tenancies.

Thus s.62 operated to convert the rights into full easements.

Kent v Kavanagh [2006]: Chadwick LJ: holds that there must be diversity of ownership in every

case wishing to use s.62.o So if X owns both plots and then sells one, s.62 does not

applyo Smith: typical s.62 case is where dominant land has been

occupied by a tenant Although conveyance may be towards somebody else

other than that tenant.

Equitable Acquisition

ER Ives v High [1967]: L built foundations of flats on H’s land. H objected, but agreed that L could keep foundations if H received right of way over yard of L’s land. H subsequently built garage only accessible by this right of way. L sold land to ER, who tried to stop right of way.

o Lord Denning MR: H has a right to use the right of way in equity if proves

Mutual benefit and burdeno When adjoining owners of land make an agreement to secure

continuing rights and benefits for each of them in or over the land of the other,

neither of them can take the benefit of the agreement and throw over the burden of it.

This applies not only to the original parties, but also to their successors.

OR Equity through acquiescenceo If H’s mind is directed to a reasonable expectation that his

access over the yard would not be disturbed Then that gives rise to an "equity arising out of

acquiescence." The court will not allow that expectation to

be defeated when it would be inequitable so to do.