1. Consolidation session 17 June 2014
Easements
Consolidation session
17 June 2014

2. Overview of Session What is an easement? Characteristics of easements
Acquisition of easements
Consideration of a sample examination question

3. What is an Easement?
An easement is a right which benefits one person’s land that is enjoyed over someone else’s land
Benefiting land - dominant tenement
Burdening other land – servient tenement

4. Characteristics of an Easement
These are set out in the key case of
Re Ellenborough Park [1956] Ch 131
There must be dominant and servient tenements
The easement must accommodate the dominant tenement
The dominant and servient tenements must be owned by different people
The right must be capable of forming the subject matter of a grant
To accommodate the dominant tenement – must benefit the dominant land in some way.
Can’t grant a right to your self. If you already have the right it is not possible to give yourself a right which you already have.

5. Right capable of subject of a Grant
Bakewell Management Ltd v Brandwood [2004] UKHL
If the right could not have been lawfully granted by deed i.e. a right to pollute a river contrary to a statutory prohibition, then it cannot be capable of being the subject of a grant
The easement would not be acquired as it does not meet the requirements of Re Ellenborough Park

6. Acquisition of Easements
Express Grant
Wheeldon v Burrows [1879] 12 Ch D 31
S62 Law of Property Act 1925
Prescription
Common law
Statute
Lost Modern Grant

7. Acquisition of Easements

8. Express Grant S1(2)(a) Law of Property Act 1925
Can only be legal easement if it is for an interest equivalent to an estate in fee simple absolute

9. Express Grant S52 (1) Law of Property Act 1925
The grant needs to be made by Deed in compliance with the terms of this statutory provision

10. Express Grant S27(1) Land Registration Act 2002
The deed needs to be registered to bind successive owners of servient land
It is only a legal easement once it has been registered

11. Express Grant
Once the deed has been registered it will appear on the Property Register of the dominant tenement and the Charges Register of the servient tenement
Until the easement is registered it remains equitable and will not bind a buyer of the servient tenement

12. Wheeldon v Burrows The right must be: Continuous Apparent
Necessary for the reasonable enjoyment of the land
Being used by the seller for the benefit of the land at the time of the sale

13. S62 Law of Property Act 1925
(1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of the conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the to the land or any part thereof.
(4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.
(5) This section shall not be construed as giving to any person a better title to any property, right, or thing in this section mentioned than the title which the conveyance gives to him to the land or manor expressed or conveyed, or as conveyancing to him any property, right, or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveyancing parties.

14. Prescription Three kinds of prescription: Common law
Prescription Act 1832
Lost Modern Grant
User as of right is common to all three

15. User as of Right Without force Without secrecy Without permission
Two further conditions:
Fee simple owner against fee simple owner
User must be continuous for the requisite period

16. Prescription
Common Law
User as of right since time immemorial

17. Prescription Prescription Act 1832
S2 provides that user as of right for 20 years without interruption defeats the common law defence that the user began after 1189
If the servient owner interrupts the user then that will defeat the claim. An interruption will not count if the dominant owner does not acquiesce in it for a year
The 20 years must be the 20 years immediately before the suit or action in which the matter arises

18. Prescription Prescription Act 1832
S4 where the right has been enjoyed for 40 years then it becomes absolute and indefeasible.

19. Prescription Lost Modern Grant The right has been enjoyed for 20 years
Deemed to have been originated by a Deed which has then become lost
Particularly useful where the right has been
used for 20 years and then there has been a
subsequent break

20. Acquisition of Easements

21. Examination Question
Jason was the registered freehold proprietor of a large property known as Matha House which was set in extensive
grounds. Martha House was always expensive to maintain so in 2000, to raise much needed funds, Jason granted a
five year lease of a cottage in the grounds (Lilac Cottage) to Peter. Lilac Cottage had only a very small garden and just
enough space to park one vehicle outside. At that stage, Peter did not own a car. However two years later, Peter did
acquire a car and Jason agreed orally to let Peter use his driveway to access Lilac Cottage directly from the main road.
When the lease expired in 2005, Jason’s financial position had not improved and so he sold the freehold of Lilac
Cottage to Peter. The transfer contained the right for Peter or his visitors ‘to park in one of the four parking spaces
adjacent to Matha House’. It made no mention of the right to use the drive.
Last year Peter sold Lilac Cottage to Shirin and Jason sold Martha House to a developer, Prestige Properties Ltd.
Prestige Properties Ltd now seeks your advice. They plan to renovate Matha House and turn it into a luxury hotel and
spa. Their managing director, Gina, wants to know whether the company can stop Shirin from using its driveway as the
plans are to build a swimming pool over it. Gina would also like to stop Shirring from using the parking space as all
spaces will be needed for clients of the spa.
In addition, Gina has received a letter from a neighbouring freeholder, Edward. He too objects to the plans for the
swimming pool area, as he claims his drains run under the driveway and have done since his bungalow was built in the
late 1970s. Gina admits this is true but her research has revealed that the house stood empty and derelict for several
years until Edward bought it in 2001; she asks whether this is relevant.
Can Prestige Properties Ltd stop Shirring from using the driveway and the parking space?
Does Edward have a valid right of drainage and will Gina’s findings have any effect on the advice?

22. Examination Question Structure for response:
Characteristics of an easement?
How has the right been created?
Consider the alternatives
Apply the facts to the possible methods
Conclusion

23. Examination Question What rights are raised? Driveway Parking space
drainage

24. Examination Question Driveway
Does it have the characteristics of an easement? – Re Ellenborough Park
Was an easement created?
Transfer in 2005
No reference to the drive
Prescription will not apply – with permission five years ago
Possible necessity – however, P had managed for two years prior to this.
Possible common intention (Pwllbach Colliery Co Ltd v Woodman)
S62 LPA 1925 – purchase of freehold in 2005 counts as a conveyance. At the time of the sale Martha House & Lilac Cottage were in separate occupation. Converts the right to an easement.
Benefit of the right will pass to Shirin from Peter
Is Prestige Properties Ltd bound by the easement?
It is legal as it is implied into a deed on a sale of part. Title to Martha House is registered so PP will be bound as the easement was an overriding interest under Schedule 3 para 3 LRA 2002 at the time of the sale.

25. Examination Question Parking Space
Does it have the characteristics of an easement? – Re Ellenborough Park
Must leave the servient owner with reasonable use of the land and not exclude him entirely (London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd)
Expressly included in 2005 Transfer
Capable of being legal – s1(2) LPA 1925
Created by deed – s52 LPA 1925
The benefit will pass from Peter to S – s62 LPA 1925
Prestige will be bound if the easement is registered before PP’s interest is registered.

26. Examination Question Drainage
Does it have the characteristics of an easement? – Re Ellenborough Park
Method of creation:
No express grant
No past sale of part
Must rely upon prescription
Common law conditions:
User as of right
Use by one fee simple owner against another
Continuous user

27. Examination Question Drainage (continued) Three possible mechanisms:
Prescription 1832 – must show without interruption
Common law – 20 years, but continuous since 1189 – this is rebutted as the property recently built
Lost Modern Grant – 20 years. Can this be established? If so, there is no need to bring a court action to establish his right. There will be a valid easement. The break after the 20 year period will not matter as the easement was already established.
It could be argued that the period of non-use and dereliction would result in an extinguishment of the right (Moore v Rawson)