An Easement is a Legal Interest in Land- S1.2 LPA. They can also be created in Equity- s1.3LPA, and is defined as a right over one piece of land (servient land) for the benefit of another piece of land (dominant land).

Requirements of an Easement

The requirements of an easement are set out in the case of Re Ellenborough Park. There are 4 characteristics of an easement:

  • There must be a dominant and a servient tenement
  • The right in question must accommodate the dominant tenement
  • The right cannot be owned and occupied by the same person/entity
  • It must ‘lie in Grant’- Must be capable of being granted by deed e.g. not too vague, not deprive servient tenement of possession of land, recreation and amusement.

Other requirements of a Easement include:

  • It must not exist in gross- Must be attached to an owned bit of land. Cannot be imposed on land that has no registered proprietor.
  • There can be no creation of any new negative easements- Phipps v Pears.


Formalities Creating an Express Legal Easement

In order for an Easement to be made legal, it must satisfy the requirement to be made by way of deed- s52LPA. Which must comply with Section 1 of the LP(MP)A:

  • Clear on the face that it is a Deed
  • Be validly executed:
    • Signed
    • Witnessed
    • Delivered


Formalities Creating an Equitable Easement 

For an equitable easement to be created, it must have failed the requirements to be a legal easement and will fall to equity. It must comply with section 52 LP(MP)A which requires it to:

  • Be in writing,
  • Signed by or on behalf of both parties,
  • With all terms included.

If there was no document or the document that was relied on does not meet the requirements of either legal or equitable standards, it may be implied.


Implied Easements

For the seller of a sale of part, to be able to imply an Easement, there are high standards. There are 2 ways in which a seller (and reservation of easement) can imply an easement:

  • Strict necessity
  • Common Intention

Strict necessity– This has very high standards and will be very rarely applied by the courts. The test for this method asks whether it is strictly necessary for an Easement to be implied in order for the owner to enjoy their property. The courts have gone far enough to say that granting use of a drainage system will not be granted by strict necessity as there is an option to have a cesspit on the land. This type of easement is usually applied for a right of way, if the land in question cannot be accessed unless an easement is granted.

Common intention– This is where there is a common intention between the original burdened and benefitted land. The court will look at the common intention of the original parties to decide whether they intended to use the land in a specific way. For example, if a path leading up to two houses was used by both owners of land on either side of the house, it may be said that the original owner of all the land would have created the path for use of both parties on the land- Kent v Kavanagh.


For the buyer (and grant) of an easement, there are 4 ways in which they can be implied:

  • Strict Necessity (as above)
  • Common Intention (as above)
  • Wheeldon v Burrows
  • Section 62 LPA 1925


Wheeldon v Burrows– This was a case in which created another way of implying easements for the buyer of land. The test from this case requires the use of the land to be:

  • Continuous- some may be used continuously all the time in a passive way, for example the right to light, the right to drainage ect. Others will have to be used more frequently. It will be up to the court to decide whether it is seen to be continuous enough.
  • Apparent- meaning it would be recognised on an inspection of the property, or even just assumed that the right would be granted.
  • Necessary for the reasonable enjoyment of the use in land- less of a requirement that strict necessity. Only a requirement of a reasonable enjoyment of land.
  • Used at the time of sale- so much that is necessary. For instance, the benefitted land does not have to be walking over their right of way at the time of sale, but they must be available to use at the time of sale.
  • Used as a Quazi-Easement- this is in reference to a sale of part. This means that Wheeldon v Burrows can only be used on sale of part. An owner of property cannot bind himself to an easement, there must be two parties. Therefore, a Quazi-Easement where even though there is only one owner, the land is being used as if there were an easement in place.


Section 62 LPA 1925– This section offers another way of implied easement, which is ways are similar to Wheeldon v Burrows, but are wider. The test for this is:

  • Right must be capable of being an easement- Phipps v Pears/ Re Ellenborough Park
  • Must be a conveyance upon section 62 can operate- must have been a sale of part and therefore a conveyance document in which there could have been an express easement granted
  • The conveyance does not express contrary intention- there is no restrictions on the way the land may be used to infer that this easement could not be implied
  • Must have been in separate occupation before the sale of the freehold- for example there was a lease, and the tenant bought the freehold of the land at the end of the lease. And the right was used in this period of separate occupation before the sale of the freehold took place. Payne v Inwood- must have been separate occupation before the sale of part. Broomfield v Williams- with Light Easements, there is no requirement of there to be separation of occupation before the sale of part.

Section 62 also provides an Implied Easement if there is:

  • A Quazi-Easmement
  • That is continuous and apparent

This brings in the question as to whether Wheeldon v Burrows is needed. While this might be the case as the act mirrors the requirements of the case law with the absence of enjoyment of land; Wheeldon v Burrows is still good law and in the cases that it can be applied.


Easements through Prescription

Easements can also be implied through Prescription. There are 3 methods of prescription that can be used to imply an Easement:

  • Common Law Prescription
  • Lost Modern Grant
  • The Prescription Act sections 2 and 3.

Common Law Prescription– This is the least common method. Common law will imply an easement if it has been used since ‘Time Immemorial’. This is the date of legal recordings, 1189, and is very hard to use. This can be rebutted very easily. For example, if a house was built after 1189 (which the majority were) the presumption will be rebutted.

Lost Modern Grant– This is the most common use of implying by prescription. If there was a 20-year period of use of the land, without any more than a year of non-use in the land, then the court will imply that a deed was made for the easement and lost. This is a complete fiction and cannot be rebutted even if it can be proven that there was no deed created. The only things that can rebut this claim is if at the time the easement was said to be made, one of the owners was unable to have created an easement. Or, both the dominant and servient land was owned by the same party at the time the easement was said to be created.

The Prescription Act 1832– Renown for being one of the worst drafted bits of legislation, the Prescription Act did create another method Implied Easements. Section 2 relates to most easements if they were used for a continuous period of 20 or 40 years before the date of the claim. If used for 20 years it must comply with the common law principles:

  • User as of right
  • Period must have been used immediately before the claim
  • Must be no interruption- of less than a year is allowed.

If the use was of 40 years, more relaxed rules common law rules are allowed by the court. .

Section 3 of the Prescription act is specifically applied to light easements. This implies Light Easements if there were 20 years of use, which does not have to be directly before the claim. If there was a 20 year period at any time, without interruption, the easement will be absolute and indefeasible.

The only thing that can defeat a Prescription Act claim is consent from the servient land owner. If at any point the owner of the servient land granted permission to use the land during that 20-year period, it will defeat the claim and there will be no Implied Easement. Consent will create a license between the two parties.


Enforceability of Easements

Legal Easements are Registerable dispositions (S27 LPA) and therefore have to be registered under the Charges Register on the burdened land. They will also be registered under the Property Register of the benefited land.

However, both Implied and Prescription made easements are Legal, but are not required to be registered. They are Overriding Interests, which bind subsequent buyers of the land, without registration. They are covered under Schedule 3 Paragraph 3 of the Land Registration Act 2002.

Equitable Easements are classed as Interests Affecting a Registered Estate, and therefore must be registered to be protected against all future buyers.

In Unregistered Land, all Legal Easements will bind the world, and Equitable Easements must be registered as a Diii Land charge to be protected.

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