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Question 3 Easements and profits

Introduction to easements and profits

Easements and profits are proprietary interests in land. Easements are rights over the land of another. Examples of these include, right to light and rights of way. Profits are rights to enter on the land of another and take the profits of it.

• By the end of this lesson, you should be able to:
  define an easement and describe the main characteristics under Re Ellenborough Park [1956] Ch 131
• understand the various ways that an easement can be granted, including the implied grant of an easement
• explain how easements can be acquired under the rules of prescription
• discuss the reform of easements introduced under the Land Registration Act 2002 have an understanding of profits a prendre.

An easement is a right in the land of another which enables the landowner to restrict, in some way, the use of adjoining land by another party. Easements and profits are two kinds of rights which can be acquired over land belonging to another.

Consider the following example. Pippa lives in Bramble Wood Cottage, next door to Rebecca in Bramble Wood Lodge. Pippa likes to walk her two dogs on the common which adjoins Rebecca’s garden. She has no access to the common and has to walk to the village and then take the main footpath. This takes about 20 minutes. If she could cross Rebecca’s land, she could get to the common in about four minutes. If Rebecca decides to grant a right to Pippa which would be the right to use her land as a right of way, this would be known as an easement.

Listen to the podcast below which introduces the nature of an easement.

Podcast Transcript

Characteristics of easements

The four essential characteristics of an easement are from the judgment of Evershed MR in Re Ellenborough Park [1956] EWCA Civ 4.

The land around Ellenborough Park was sold for building. Each property owner was granted a right to use the park, subject to covenanting to pay a contribution towards its upkeep. In due course the park was sold, and the new owners wanted to build on it. The Court of Appeal held that the right to use the park was an easement, and was binding on the new owners. There are four essential elements required for an easement:

There must be a dominant and a servient tenement.

An easement must accommodate the dominant tenement.

The dominant and servient owners must be different persons.

The right over land claimed as an easement must be capable of being the subject matter of a grant.

Let’s look at each of these characteristics in turn.

There must be a dominant and servient tenement

The easement must benefit land and there must be two pieces of land.

The dominant and servient owners must be different persons

The dominant tenement and the servient tenement must be owned or occupied by different persons.

Thelma lives at 1 Coppice Close and uses a shortcut through her neighbour Jenny’s garden. Thelma has the dominant tenement and Jenny has the servient tenement. The right of way constitutes an easement. What are Jenny’s obligations in relation to the easement enjoyed by Thelma? If Thelma finds the route muddy and uneven, does Jenny have an obligation to improve the quality of the road?

Jenny is under no obligation to expend money, keeping the route in repair as this would impose a burden on her as the servient owner as per Regis Property Co. Ltd v Redman [1956] 2 QB 612.

Car parking

Whether there can be an easement of the right to park a car has not been definitively settled, although there have been many cases. To understand further about this, watch the PowerPoint presentation below. Record your findings using the note function on the module homepage.

https://vimeo.com/213874557/62ef91c553 Transcript

 

The grant of easements

Easements can be granted in a number of different ways: express grant or reservation
implied grant or reservation
prescription.

Express Grant

An express grant is made when one landowner creates an easement over his land in favour of his neighbour. As an example, if Rosie lives next door to Suki, and Rosie wants to use Suki’s garden as a shortcut to get to the woods at the back of it, Rosie must formally grant Suki an easement. This must be created by a deed, as the right of way is an interest in land. If the documents used were not in the form of a deed then only an equitable easement would be created

Express Reservation

An express reservation arises when a landowner transfers part of his land to another, but he keeps or reserves himself a right to use part of the land he has sold. As an example, Uthman has a huge garden and he decides to build a house in part of the garden, which he then sells to Jasmine. When the house is sold to Jasmine, Uthman must expressly agree with her that she can continue to use a shortcut which runs from Uthman’s house through Jasmine’s new garden. For this agreement to be legal, it needs to have been executed by way of a deed.

 

 

 

 

Implied Grant

 

Sometimes the grant of an easement will be implied in favour of a purchaser of land. These grants take effect as legal easements. Easements by implied grant can arise in the following ways:

Necessity – this is one without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of the property. Courts will always imply an easement in these circumstances. An example of such a situation would be where the land retained is genuinely landlocked.

Through common intention of the parties – an easement may be implied in favour of a transferee in order to give effect to a common intention of the parties. In Wong v Beaumont Property Trust (1965), the claimant took a lease to start a Chinese restaurant. He had to comply with the public health regulations which stipulated that he should not cause a nuisance and eliminate all smells. The only way this could be done was by installing a new ventilation system through the landlord’s property. The landlord refused access. The Court of Appeal granted the tenant the right on the grounds of common intention that the property was to be used as a restaurant and the tenant should have the rights required to comply with this. The courts also established that this right was granted through necessity as well.

The rule in Wheeldon v Burrows

1879 12 Ch D 31 – On a grant of land, the grantee will acquire, by implication, as easements all quasi easements over the land retained which:

• were continuous and apparent; or
• were necessary to the reasonable enjoyment of the property granted; and
• had been and were at the time of the grant used by the grantor for the benefit of the part granted.
• 62 Law of Property Act 1925 – A conveyance of the land shall be deemed to convey and shall operate to convey with the land all privileges, easements, rights appertaining or reputed to appertain to the land at the time of conveyance. This provision is not controversial in itself, but it provides that on a conveyance of land certain rights that it has are automatically also conveyed. What is controversial is the use which has been made of it to create easements where none seemed to exist before.

 

 

 

In Wright v. McAdam

1949 2 KB 744, the defendant let a flat to the claimant and gave her permission (i.e. a licence) to store coal in a nearby shed on his land. He later granted her a new tenancy. It was held that the grant of the tenancy was a conveyance under S.62(1), and as a right to store coal was a right capable of being granted by law, the grant of the new tenancy had the effect of converting what was a licence into an easement.

Implied Reservation

It is important to appreciate that a reservation will be implied only in relation to an easement of necessity or a common intention.

 

Find the practical guide https://www.gov.uk/government/publications/easements-claimed-by- prescription and make a short note of 300 words of the creation of easements. Add your short note to the lesson discussion forum, found on the module homepage on ilearn and conduct a discussion about each other’s notes.

 

The Law Commission through its report “Rights to Light” (Law Comm No 356) sought to investigate whether the law by which rights to light are acquired and enforced provides an appropriate balance between the important interests of landowners and the need to facilitate the appropriate development of land. It considered how the law might be clarified and examined whether the remedies available to the courts are reasonable, sufficient and proportionate.

Find the Law Commission report “Rights to Light” (Law Comm No 356) and list down the key recommendations.

In the report, the following can be stated as a summary of the key recommendations made:

• a statutory notice procedure which would allow landowners to require their neighbours to tell them within a specified time if they intend to seek an injunction to protect their right to light, or to lose the potential for that remedy to be granted;
• a statutory test to clarify when courts may order damages to be paid rather than halting development or ordering demolition;
• an updated version of the procedure that allows landowners to prevent their neighbours from acquiring rights to light by prescription;
• amendment of the law governing where an unused right to light is treated as abandoned; and
• a power for the Lands Chamber of the Upper Tribunal to discharge or modify obsolete or unused rights to light.

The Law Commission’s report on Rights to Light awaits a response from the Government. However, the Law Commission’s Report on Easements Covenants and Profits a prendre (Law Comm No 327) has made recommendations to modernise and simplify the law in these areas. In the Queen’s Speech on 18 May 2016, the government announced its intention to respond to the Law Commission report 327 in a draft Law of Property Bill. That draft Bill is awaited.

Profits

As mentioned at the beginning of this lesson, a profit is a right to take something from the land of another.

Note the following rules on profits and how they differ from those on easements:

• There’s no requirement of a dominant tenement.
• Profits can be acquired by:
• statute
• express grant
• implied grant where the rule in Wheeldon v Burrows (1879) Ch D 31 does not apply to the creation of profits but S.62(1) LPA 1925 does
• prescription at common law, lost modern grant and through Section 1 Prescription Act 1832 where the periods are 30 and 60 years.

Easements, profits and third parties

In registered land, legal easements and profits created expressly (i.e. by deed) are registrable dispositions. Express legal easements and profits, and equitable easements, which were overriding before 13 October 2003, remain overriding. New equitable easements and profits are now minor interests.

 

 

 

The only new legal easements and profits that can be overriding are those created:

– by implied reservation

– by implied grant (rule in Wheeldon v. Burrow 1879) Ch D 31 s or S.62(1), LPA 1925)

– by prescription (Sch. 3, para. 3, LRA 2002).

In unregistered land, legal easements are binding on all third parties. Equitable easements must be registered as land charges if created on or after 1 January 1926. Those created before this date will bind purchasers who have notice of them and will bind donees automatically.

Further reading

In addition to the reading recommended within the lesson: Essential reading

Martin Dixon, Modern Land Law (10th Edition, Routledge 2016) Chapter 7 which can be found in your e-library.

References

Roger Smith, Property Law Cases and Materials (Longman Law Series) (6th Edition, Pearson 2015)

John Duddington, Land Law (Law Express) (1st Edition, Longman 2006)

Judith Bray, Unlocking Land Law (5th Edition, Routledge 2016)

Nicola Jackson, John Stevens, Robert Pearce, Land Law (5th Edition, Sweet & Maxwell 2013)

Charles Harpum, Martin Dixon, Stuart Bridge, Megarry & Wade: The Law of real property, (8th Edition, Sweet & Maxwell 2012)

https://www.lawcom.gov.uk/project/easements-covenants-and-profits-a-prendre/ Accessed 20/06/2018

https://www.lawcom.gov.uk/project/rights-to-light/ Accessed 20/06/2018