Easements Part II – How is an Easement created?

The rules governing the existence of an easement were laid down in the case of Re Ellenborough Park [1956] Ch131:

  1. For an easement to be established there must be a ‘dominant tenement‘)and a ‘servient tenement’– this means that there must be one property that benefits from the easement and one property that is burdened by the same easement.
  2. The easement must ‘accommodate and serve the dominant tenement – the right created by the easement must be for the benefit of the property and not just for the personal benefit of the property owner. Further, the properties do not have to be next to each other and there are many cases where the dominant with the benefit of the easement and servient tenements which are subject to the easement are separated by other land or by for example, where one property owns a road and each of the neighbouring properties are granted a right of way easement over the road.
  3. The ‘dominant’ and the ‘servient’ tenement must be in different ownership – this is self-explanatory and applies not only when the easement is created but also subsequently – as soon as the properties come into the same ownership the easement ceases to exist.
  4. The easement must be capable of forming the subject matter of a grant- this means that the right which is the subject of the easement must be clear and certain and thus capable of being granted by way of a Deed (‘A Deed of Grant of Easement’). This does not however mean that the easement must be granted by Deed as we will see later.

The Establishment of an Easement

There are four main methods by which an easement can be established :
  1. Express Grant
    Easements can be expressly granted in a Deed and often are in the sale or letting of a property. The establishment of an easement is a common feature in the Transfer of a newly built property or when a piece of land is divided into two separate properties; a common easement granted in these instances is a right of light and air, or an easement for a right of way or for drainage.
    It is also common for an easement of right of light to be excluded by the terms of a Deed to enable the developer of a new build estate to continue to develop the neighbouring land.
  2. Section 62 of the Law of Property Act 1925 (‘Section 62’)
    Section 62 acts to grant an easement or easements by default and write into the express terms of a Conveyance that ‘all ….liberties, privileges, rights and advantages whatsoever’ enjoyed with the land at the time of the conveyance are to continue to be enjoyed by the land.
    There are risks in allowing Section 62 to continue to operate which is why most developers seek to prevent such a easement being established and will insist, in the terms of the Transfer Deed, that the operation of Section 62 is expressly excluded when a property is sold, however this is too large a topic and is best left for another article.
  3. Implication
    Easements can arise by implied grant where the full extent of the easements that benefit or burden the land are not clearly set out or expressed in the title deeds. Easements can be implied where:
    • The easement is essential for the use of the land an example is where a property would otherwise be landlocked without access over neighbouring land to for example, the nearest highway .
    • Where an easement is necessary to allow the property to be used in the manner intended by both parties at the date the land is transferred.
    • The Seller has used part of his land for the benefit of another before transferring it , under the rule in Wheeldon v Burrows[1879]
    An easement that is created by implied grant or reservation are effective in law with immediate effect and will bind successors in title.
  4. Prescription (‘long use’)
    An easement may evolve by prescription when a property owner makes use of the neighbours land for a period of at least 20 years openly and without permission , hindrance or dispute.

    There are three ways in which an easement can arise through prescription:
    • At Common Law
      This is by continuous use or exercise of the easement without force, openly and without permission since 1189 (the year of King Richard I’s coronation). The fact that the easement has have been exercised continuously from 1189 (may be difficult to prove), makes prescription at common law of limited use.
    • By Lost Modern Grant
      This is based on a legal fiction where it is assumed that if an easement has been exercised in the use of the land continually and without interruption, openly , without force and without consent for 20 years the easement must have been granted but that the deed or other evidence of the grant of the easement has been lost. The pitfall here, is that if it can be shown that there was nobody who could have granted the easement – the easement will be lost as it could not have been created.
    • Prescription Act 1832
      The Prescription Act of 1832 states that where the easement has been enjoyed openly and without consent for a period of 20 years before it is claimed, without interruption, the right will automatically evolve. Here if the easement has not be used for a period of less than one year, this does not preclude the easement from being perceived as having been exercised without interruption. Thus prescriptive use for 19 years and one day can be sufficient for the easement to evolve.

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