Easement

An easement is a legal right to use anothers land for a specific limited purpose. In
other words, when someone is granted an easement, he is granted the legal right to
use the property, but the legal title to the land itself remains with the owner of the
land.
Requirement of easement
In Re Ellen Borough Park, Lord Evershed stated that for a right to be capable of
being an easement, there must be
A dominant and a servient tenement. This means, there must be two parcels of
land, one which is benefited by the easement (dominant tenement) and one
which carries burden of it (servient tenement).
The dominant and servient properties must be in separate ownership or
occupation. It is logic to say that you cannot have a right of use over your own
land, so, the dominant and servient owners or occupiers must be different
people.
The right must accommodate (benefit) the dominant but not the servient
tenement. It is fundamental to the nature of easement that the right of use
conveyed is not just for the benefit of the person who has the initial benefit of
that easement, but that it is for the genuine use and enjoyment of land itself.
In Hill v Tupper, company leased land adjoining a canal to Mr Hill, giving
him a sole and exclusive right to let out pleasure boats on it. Mr Hill tried to
sue Tupper when rent out his own boats on the canal. The court held that Hills
rights in land could not form an easement because the right to let out boat on
canal provided no genuine accommodation to the land leased.
But if an easement will benefit future owners of that land, or a business as a
result of it being for the benefit of land, it will be classed as an easement.
This illustrated in Moody v Steggles, a right to hang a sign on neighbouring
land which pointed to a pub was held to be a valid easement as despite
benefitting the business situated on the dominant land it would continue to
benefit successors in title to the dominant land.
In Pugh v Savage, it was held that DT and ST is no need to be next to each
other.
The right must capable of forming the subject matter of grant. Shortly,
easement can only be created by deed and must be recognised by court.
For example, Wong v Beaumont Property Trust,
Regulations required a ventilation duct to be installed in a restaurant. It was
held that there is an easement of common intention granted over the lessors
land for a ventilation duct leading from the lessees land. A ventilation duct
was necessary for that particular and definite purpose.

Expenditure of money

 An easement must not involve a cost to the burdened property. This can be seen in
Regis Property Co Ltd v Redman, in which the tenant tried to claim the benefit of an
easement by landlord to supply hot water to tenants property. The court held that such
claim could not be an easement as it would impose a financial burden on the landlord.
Conversely, it should be noted that where there is an easement over land, whilst the
owner of burdened land under no obligation to do any repairs or maintenance to
enable the easement to be enjoyed, the benefiting landowner has the right to enter the
burdened land to effect necessary pairs.
Exclusive possession
An easement is a right of use only and thus any right which amount to exclusive
possession of the burdened property cannot be an easement. Difficulties always arise
when there is rights of storage and right to park.
In London & Blenheim Estate Ltd v Ladbroke Retail Parks Ltd, it was held that
right to park a car could constitute an easement provided that vehicles were not
constantly in the same spaces and did not interfere with the burdened landowners
reasonable use of land.
In contrast, in the case of Batchelor v Marlow, a claim to easement of the right to
park up to 6 cars on a plot between 9 to 6, Monday to Friday, failed on the basis that
the claim was too intrusive on burdened landowner.
Thus, the claim in Copeland v Greenhalf failed. Defendant was a wheelwright by
trade, had 50 years used a narrow strip of land which belonged to claimant. He
claimed benefit of easement over the strip of land, but his claim failed as this had
deprive the landowner of using their own land entirely.
However, more recently, courts have been less inclined to find that easements amount
to exclusive possession.
In Kettel v Bloomfold 2012
It was held that there is a valid easement and injunction is granted to prevent the
servient landowner from building on the servient land. As when not in use, the
parking spaces could be driven owner, the servient land could be used for other
purposes, rendering the easement not a claim to exclusive possession
The landlord and servient land owner could not unilaterally extinguish the easement
How to create an easement
Grant: Where someone gives a right over their own land to another person.
Reservation: where someone sells part of the land to a third party, reserving the rights
over the land sold to benefit the land retained.
Express creation
Both grant and reservation of easement can be expressly created by deed. This is
govern by s52 LPA 1925, which states that the creation or disposition of any estate or
interest in land must be by deed.
Besides, under s1(2) LPA 1925, in order for an easement to be legal, it must either be
granted for a term of equivalent to a freehold(permanently) or for terms of years,
meaning a specific time period. If it is any other period like, for life, it can exist in
equity only.

Implied creation: necessity

Court will imply into the deed of purchaser of a property an easement in favour of the
land purchased when, and only when the land would be incapable of use, and
therefore worthless, without it.
In MRA Engineering Ltd v Trimster Co Ltd, it was held that an alternative access to
property in the form of public footpath over neighbouring land was sufficient to
prevent a claim to an easement of necessity. Even the public footpath did not provide
any vehicles to access to claimants land.
Besides, in Manjang v Dammeh, Privy Council made the decision that the land
adjoining a river in Gambia was not landlocked and therefore ineligible for a claim to
an easement of necessity because the river was a public highway and although less
convenient, was therefore a perfectly legitimate access to property.
Last, easement of necessity must be in existence at the time of property is purchased,
and not simply be something which arise at a later date. A good example is in
Midland Railway v Miles, which concerned a claim to an easement of necessity
through underground tunnels comprising former mines which provided the only
means of access across a piece of land covered in railway tracks. Yet the claim of an
easement was refused because, at the time of purchase of the land, the claimant owned
the mine in question. The necessity therefore only arose after the event.
Common intention
The court will also imply into deed of sale the grant or reservation of easement in
situation where they think this was the intention of genuine parties when the land was
sold. An example of case is, the Jones v Pritchard, where shared chimneys to a pair
of semi-detached houses were held to be capable of use by both parties by way of
easement of common intention.
There is a requirement that the property or sold with a view to its use for a particular
purpose; and it is that purpose that it must be impossible to carry out without the
benefit of the easement in question. In Stafford v Lee and Donovan v Rana, where
parties intent there to be a dwelling house built on land, it may be considered that
connections to essential services are necessary for that purpose, such that an implied
easement of common was impliedly granted for the benefit of that land.
Wheeldon v Burrows (only for grant)
In Wheeldon v Burrows, it was held that, when a landowner makes use of land owned
by them that could, if part of the land was subsequently sold, potentially form the
subject of an easement, which that use is known as quasi-easement.
Yet, before the easement under this rule will imply,
The right must be continuous and apparent. It must be uninterrupted for a
number of years and it must be clear upon inspection of the property that the
right exist. For example, in the case of right of way by existence of a path or
road through the property. This was the case in Hansford v Jago.
The right must be necessary for the reasonable enjoyment of the land sold. In
essence, an easement will be considered reasonable if it enhances the
enjoyment of the land.

 The right must have still been use at the date of transfer. In Re St Clements
Leigh-on-Sea, a claim to an easement of way from a former rectory across a
churchyard failed under the rule of Wheeldon v burrow as the rectory had been
vacated long before the conveyance to the claimants predecessor in title and
the access of churchyard was therefore not at the time of sale being used for
the benefit of rectory.
S62 LPA1925
Section 62 of the Law of Property Act 1925 is a word saving provision. It ensures that
rights enjoyed by a previous owner of (dominant) land are transferred to its new
owner.
S62 has the effect of upgrading a licence granted by the owner of the land to a tenant
to an easement, when the land occupied by the tenant is subsequently sold to them or
on the renewal of their lease. In Goldberg v Edwards, a personal right of access
through a house by way of a bare licence was enough to create an easement as it had
been used at the practical time of the conveyance (any backdating was ignored).
In Wright v Macadam, a tenant was allowed to use a coal shed situated on landlords
premises. The lease was later renewed and no mention was made of the use of the coal
shed. When the landlord tried to claim extra rent for the use of shed, CA held that the
renewal had been a conveyance under s62 and that the licence had therefore become
an easement of storage.