Easements in English law
Encyclopedia
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.
definition, outlined in the case of Re Ellenborough Park
. Here, Danckwerts
J laid out essential characteristics of an easement:
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. Next, it must be shown that the right is connected with the enjoyment of the dominant tenement in some way. It is important to this end that the right must benefit an individual in their capacity as a land owner, and not merely form a personal right. For example, it has been judicially stated that a right of way over a plot of land in Northumberland to an estate in Kent would not form the requisite benefit, the proximity of the two pieces of land being too remote. It was recognised in Re Ellenborough Park however that an easement need not be over an adjacent property, though there must clearly be some reasonable connection in which the dominant tenement can be benefitted. An easement can not be recognised where it the dominant and servient tenement are under common ownership. However, rights may be recognised as 'quasi-easements', which can then be implied as full easements upon the conveyance of the land in question. The most problematic characteristic of an easement is that it must be capable of forming a grant by deed. The right must therefore be certain and definite in its purpose, and more importantly, that the courts are willing to recognise it as a right capable of being an easement. Many claimed rights fail this last criterion, for example, rights which require positive action by the owner of a servient tenement are unlikely to be granted, as are negative rights, which restrict the use of land. Rights which are excessive in nature are equally unlikely to be upheld. In Copeland v Greenhalf
a claim to store unlimited vehicles on a neighbour's land failed, with the interference and right claimed being too great to be allowed as an easement.
. 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.
Law Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
'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 lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
definition, outlined in the case of Re Ellenborough Park
Re Ellenborough Park
Re Ellenborough Park [1955] is an English property law case primarily concerning the validity of an easement.-Facts:Ellenborough Park is a large area of parkland in Weston-super-Mare. The land was owned in 1855 by two tenants in common, who sold off parts of the land for the building of houses,...
. Here, Danckwerts
Harold Danckwerts
Sir Harold Otto Danckwerts was a lawyer and judge in England and Wales.Harold Danckwerts was appointed a Justice of the Chancery Division of the High Court of England and Wales on 1 June 1949. A few days later he was knighted. He was promoted to be a Lord Justice of Appeal in the Court of Appeal...
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. Next, it must be shown that the right is connected with the enjoyment of the dominant tenement in some way. It is important to this end that the right must benefit an individual in their capacity as a land owner, and not merely form a personal right. For example, it has been judicially stated that a right of way over a plot of land in Northumberland to an estate in Kent would not form the requisite benefit, the proximity of the two pieces of land being too remote. It was recognised in Re Ellenborough Park however that an easement need not be over an adjacent property, though there must clearly be some reasonable connection in which the dominant tenement can be benefitted. An easement can not be recognised where it the dominant and servient tenement are under common ownership. However, rights may be recognised as 'quasi-easements', which can then be implied as full easements upon the conveyance of the land in question. The most problematic characteristic of an easement is that it must be capable of forming a grant by deed. The right must therefore be certain and definite in its purpose, and more importantly, that the courts are willing to recognise it as a right capable of being an easement. Many claimed rights fail this last criterion, for example, rights which require positive action by the owner of a servient tenement are unlikely to be granted, as are negative rights, which restrict the use of land. Rights which are excessive in nature are equally unlikely to be upheld. In Copeland v Greenhalf
Copeland v Greenhalf
Copeland v Greenhalf [1952] Ch 488 is an English property law case establishing that excessive use of another's land cannot be granted by way of an easement. The defendant claimed that he held a prescriptive right to leave an unlimited number of cars on his neighbour's land, by way of such a right...
a claim to store unlimited vehicles on a neighbour's land failed, with the interference and right claimed being too great to be allowed as an easement.
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 1925Law of Property Act 1925
The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
. 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"