1

[EASEMENT AND PROFITS]

[What is Easements] An easement is a right given to another person or entity to trespass upon the land that person or entity who does not own. Easements are used for roads, for example or given to utility companies for the right to buy cables or access utility lines. Landlocked home owners sometimes pay for an easement to cross the land of another to reach their land. Easements run with the land. Almost every home has an easement. It is important to look for easements in the public records, especially if a prospective buyer plans to put in a swimming pool. A property owner cannot build on top of an easement. Easements are proprietary interest or privilege in lan !hi"h the o!ner o# a omimant tenement e$er"ises over the servient tenement% &e !ho ta'es the (ene#it o# the tenement is amo)nt to ominant tenement an the other is amo)nt to servient tenement% he use must not leave the serviant tenement without any reasonable use of his land. he !omenent cannot interfere with reasonable use of the land to the servient tenement. [*hara"teristi" o# Easement] EA"E#E$ " are proprietary interest in land in which the owner of dominant tenement exercises right over serviant treatment. Easements are proprietary rights capable of passing with the land which they affect and disrupt the servient landowner%s use and en&oyment of his land and as this is proprietary right, so binds the third party and'or the purchaser of the servient tenement. "o in order for a right to (ualify as easement, four )*+ conditions need to be fulfilled as held in Re Ellen(oro)gh Par'% In order to establish easements right, the conditions as set out in Re Ellen(oro)gh Par' need to be satisfied. a+ There m)st (e a ominant tenement an a servient tenement% he first and traditional condition for the existence of the easement is that there must be a dominant and servient tenement. his is the heart element of the easement. Easements are right that exist for the benefit of one piece of land and are exercised over another. his means that there must be land that is benefited )the dominant tenement+ and land that is burdened )the servient tenement+. ,)r en -an is "alle Servient Tenement an ,ene#it -an is "alle Dominant Tenement% (+ The ominant an servient tenement m)st (e separately o!ne or o"")pie % his is the second condition that the dominant tenement and servient tenement must be owed by the separate persons. Easements are basically some rights to another land so there must have two separate owners and two separate land for creation an easements. ,or example- to walk over it, right to sewerage etc and for this reason dominant and servient must not be owed by the same person at the same time. The Servient an Dominant tenement m)st have to hol or o!ne (y the t!o i##erent persons% "+ The allege easement m)st a""ommo ate [(ene#it] the ominant tenement% he dominant tenement must have to benefit with the land which is sub&ect to easements. his is the important re(uirement because the right to easement is attached to the land not merely to that persons who are currently owes or occupies the land. .ut in this regards, the following factors need to be established. There m)st (e some (ene#it #or the ominant tenement o)t o# the easements% In )sing a path #or many years. has / a"0)ire an easement over the #irm !hi"h

/ a""ommo ates ominant tenement% It sho)l (ear in min that the right o# !ay is one o# the most !ell 'no!n o# easement% 10 /0 he servient tenement must be sufficiently proximate to the dominant tenement. he alleged right must not confer a purely personal advantage on the owner of the dominant tenement. A right which confers a personal benefit to the owner of dominant tenement will not accommodate the dominant tenement. In &ill v T)pper. for example, the right to place boat on Lack was held to be incapable of being easement. As the land of the dominant was far away from the Lack and riding boat is not connected to the use of the land that is sub&ect to easement. .ut in #oody v "teggles where right to hang a sign pointing towards a public house was held to constitute an easement. his is because being used for years the public house has become the land itself and anything benefiting the public house thus benefits the land. To gain personal (ene#it !ill not amo)nt to easements% -an ominant han have to (e (ene#ite . not mere personal . #eel "om#ort !ill not (e amo)nt to easement% A(ove all. the (ene#it have to (e atta"he !ith the ominant lan % The lan have to (e (ene#ite not personal (ene#it at all%

10 It is unlikely that a right that confers a purely recreational use on the dominant tenement will be accepted as an easement. ,or example- a right to wonder over open countryside or parkland or using swimming pool, right to use the tennis court are etc unlikely to be accepted as an easement. Re"reational right is not easement right. lan o# the person have to (e (ene#ite not mere personal en1oyment is not s)##i"e !hi"h is rather a!ay #rom the lan (ene#ite % *0 In order for an alleged easement to accommodate the dominant tenement, it does not have to be needed by the dominant tenant. he claimant does not have to prove that the alleged right is beneficial in the sense of conferring a distinct advantages that the land would not otherwise en&oy. E$"eption the a(ove metho s2 )need to be discussed after discussion of general rules+ 2ecreation rights will not suffice to establish Easements right as found in Re Ellen(oro)gh Par' 3ase but this 3ase find the E43E5 I6$" which established that 7if the right in 5ark through recreational in nature was held to be capable of becoming an easement , because it increases the value of the land8. + The right m)st (e "apa(le o# (e"oming the s)(1e"t matter o# a grant% An easement must originate in a grant, whether express, implied or presumed, certain conditions must be fulfilled, a0 there must be both a capable grantor and capable guarantee, b0 there must be sufficiently definite, 3ases involving claims to the free access of air illustrate this point as found in .ryant v Lefever and 3able v .ryant and 5hipps v 5ears suggest that claim to protection from the weather was probably too indefinite to be an easement. It appears unlikely that a court will recogni9e new easement which re(uire to the servient owner to spend money, it is also unlikely that an easement allowed if it gives the owner of the dominant tenement a right to prevent the owner of the servient tenement from doing something on his

1 own land, partly because this is more properly viewed as a restrictive covenant. It must be in the nature of easement, the right to store can exist as easement if it allows the dominant owner to store on part of land and not on the whole of it as found in :right v #acadam contrasted with 3opeland v ;reenhalf. "o right to park over a defined area can exist as easement. The right sho)l (e easement in nat)re i%e% right to !ay. right to "ar par'. right to !ay et"% One nee s to #in that the right sho)l (e relate to the (ene#it #or the ominant tenement not mere personal one% Right to Way "an amo)nt to (e a easement as #o)n in -on on an ,lenheim Estate v -a (ro'e Retail Par' -imite % Not E$"l)sive 3se2 Dominent Tenement "annot )se the lan the servient tenement% right to car park is an easement right. 2ight to "torage is amount to a easement as found in Wright v Ma *a am% [-egal an E0)ita(le Easement] Easement may be either Legal or E(uitable, depending on the type of instrument used to create it. ,ailure to use formalities as re(uired means that no easement will exist at all. ,urthermore, the differences between legal and e(uitable are much more lighting when the Land registration Act /<</ came into force. -egal Easement2 In order for an easement to be legal, there must have to be a number of essential conditions- here areEasement created by statute- An act of 5arliament may determine that local authority, corporation even a private individual shall be entitled to the benefit of an easement. his is usually for some public purposes. Easement created by 5rescription- Easement created by the process of prescription are also legal, i.e. where a person has en&oyed the right of way for many years except in case of easement of light under the 5rescription Act 1=1/. As the is used for many years, so the provisions of the 5rescription Act 1=1/ need to be considered. he statutes provides two periods in respect of easement other than the easement of light, long period is *< years and the short period is /< years. he provisions for the shorter period of /< years may be applied where a0 there has been user of /< years, b0 the user has been en&oyed for the /< years, c0 the user has been en&oyed as of right and d0 there has been no interruption. Easement created by !eed )unregistered land+ or 2egistered !isposition )registered land+- Easement 3reated by this method need to be furnished in a formal document )deed or registered disposition+ and those are amount to legal right over easement. Indeed, the manner of their creation by formal documents ensures that their existence is more discoverable by the prospective purchaser of the servient land. he creation of legal easement by deed or registered disposition may either by express or implied. >nder the Land 2egistration Act /<</, an easement granted out of registered estates that is where the serviant land is a registered title. ,ailure to do so, render the easement e(uitable. #oreover, if the dominant land is registered, the benefit of the easement must have to be noted against the title. E##e"t o# -egal Easement2 whether is that binds the third party, if the land is unregistered then the legal easement will bind everyone. If the land is registered the interest will be protected by overriding interest, the prospective purchaser is bound by the overriding interest as found in )if the land is registered then the issue of e$"l)sively over

* overriding interest appears+ )"ec ?<@10@a0 L5A 1A/B and under "chedule L2A /<</+ which supports the view of override. E0)ita(le Easement2 Easements held for periods less than a fee simple absolute in possession or a term of years )leasehold+ must be e(uitable. hey are not included the definition of legal estates and interest as found in "ec 1 of L5A 1A/B. #ainly, an easement will be e(uitable even if held for a legal or leasehold if it is not created by statute, nor by prescription, nor by deed'registered disposition. E(uitable Easements can be created in the following two manners3reation of E(uitable Easements by written instrument- >nder "ec / of the Law of 5roperty Act @#iscellaneous 5rovisions0 Act 1A=A, a contract for the creation of an interest in land must be in writing, incorporating of all the terms and be signed by the both parties, if it is to be enforceable. .ut it need to be registered after informal formation, later on it need to be registered as an e(uitable easement. 6peration of 5roprietary Estoppel- #ere oral agreement can create e(uitable easements. .ut an e(uitable easements may be created through the process of proprietary estoppels. hus, in Ives v Cigh where an oral promise, relied on by the promise to their detriment, granted an e(uitable easements against the promisor because it was unconscionable to deny it. E##e"t o# E0)ita(le Easement2 2egistered Land )if the easement is registered as e(uitable easement+ then minor interest need to be registered. Ce who claims must registrar the easement. hird party is bound if the 3laimant registered the e(uitable easement as minor interest. If registered land and if the 3 registered the minor interest )two times+ registration is re(uired to bind third party. 3lass !1 L2A )if the land is unregistered e(uitable nature+. [Distin"tion (et!een -egal 4 E0)ita(le Easement] 2ight to 3ar park in a defined are can amount to a Easement as found in Ne!man 5ones% v

[*reation o# Easement6Mo e o# A"0)isation] Easements can be created either by legal or e(uitable. o sum up they are 10 by statute )legal easement, /0 by prescription )legal easement+, 10 by deed or registered disposition )legal easement+, *0 by a specifically enforceable written contract, not amounting to a deed or registered disposition )e(uitable easements+ and B0 by estoppels )e(uitable easement+. Cowever, easements can be created expressly and impliedlyE$press *reation2 Easements may be created expressly either by express grant or express reservation. Express grant- an easements is expressly granted when the owner of the potential servient tenement gives an easement over that land to the owner of what will become the dominant tenement. his may occur in two principal ways- 10 where the servient and dominant tenements are already in separate ownership, the servient tenement may grant an easement over his land to his neighbor and /0 where land is owned by a potential servient owner and he then sells of lease to the other, in this regard the potential servient owner )seller+ may include that sale'lease a grant of an easement to the prospective purchaser. hen the land remaining in the seller%s possession becomes the servient tenement and the sold land becomes the dominant tenement. he

B seller has granted easements over his own land along with the sale'lease of the dominant part. Express reservation- an easement is expressly reserved when the owner of the potential dominant tenement keeps an easement for the benefit of the land i.e. where the land is owned by the potential dominant owner and he then sells or lease a piece of that land to other, the potential dominant owner may include in that sale a reservation of an easement for himself. Implie *reation2 it may happen that the transfer of land does not expressly mention an easement, but it may be expected in the circumstances i.e. a seller of part of land meant to grant an easement of way to a purchase or to keep an easement of drainage for himself but the conveyance was silent in that regard. here are three main ways by which an implied easements may be created. R)le in Wheel on v ,)rro!i codified the systems. :here A owes / 5lots. ,or the benefit of 5lot 1, he uses other plot /. Ce sold 5lot 1 to others. $ow the (uestion, whether the purchaser can en&oy the easements rights as en&oyed by the previous plots. If the 5urchaser can establish 1 @three0 systems then he will be able to establish easements right over the land. 10 /0 10 he 2ight is continuous and apparenthe right is necessary for the reasonable en&oyment of the landhe 3ommon 6wner used the right for the benefited land sold to others-

Pres"ription A"t 789:. Se"2 ;:. continuous and uninterrupted use of a right other than light for /< years gives the user an easement right. he right can be rebutted by oral evidence of permission, force or secret use. "o in order to be easement under 5rescription Act 1=1/, the use must be as of right, not by force, permission )express or implied+ or secret use. "ec / of the Act, of this act continuous and uninterrupted use of a right other than light for *< years makes the right absolute which can only be defeated by written evidence of force secret use of permission. "ec 1 of the Act, of the Act, continuous use of a right of light for /< or more years makes the right indefeasible and absolute. Mo i#i"ation o# Easement an Termination o# Easement2 :here the dominant tenement is changed in character that the nature and scope of burden on servient land has changed then Att!oo v ,ovis &omes -imite makes it clear that there would be no such easement for the changed use. 6n the fact of Attwood no substantial change in use of drainage was found. In Pea"o"' v *)stins where a farmer wanted to use a right of way in order to gain access to a field that was not part of the land expressed to be benefited in the conveyance creating the easement but which he farmed with the benefited land. he 3ourt of Appeal held that the right of way cannot be used to get access to the extra field and confirmed that the right was determined by reference to the land mentioned in the conveyance. .ut in Ma"epar' -imite suggests that access to extra land was acceptable but the right of way cannot be used substantially for that purpose. [Proposal #or Re#orm o# Easements] he Law 3ommission 3onsultation 5aper $o. 1=D proposed wide spread reform of the law governing easements, covenants and profits. In terms of the definition and characteristic of

D easement, the law commission is (uite conservative. he current proposals are to keep the dominant tenement and servient tenement and that the claimed easement must accommodate the dominant land. ,urther, the law commission recommends the custody of the limitation on unrestricted or excessive use of the servient property. It would make amendments to allow parking a car on a defined space to become an easement, something which at the moment is not entirely free from doubt. Amongst the main problems identified in the current law, in respect of easement, the fact that some are ac(uired too easily and some may be difficult to detect and generally there is no means to modify them unlike the provision in relation to covenants. he law relating to implied creation is described as being neither straightforward nor clear. In respect of implied creation, the Law 3ommission recommends a fundamental change, to adopt an approach prevalent in America. In a claim for an implied easement there would be no different in approach between a claim for an implied grant and an implied reservation. It suggests that the present effect of "ec D/ of the Law of 5roperty Act 1A/B, whereby easement can be created from precarious rights, (uite possibly where the grantor does not intended that to happen, should be abolished. As far as other methods of implied ac(uisition, the law commission is soliciting views on whether it would be appropriate to place on a statutory footing. he main proposal for consultation in respect of easements are 10 the abolition of the existing methods of prescription and their replacement with a single, statutory method, /0 the rationali9ation of the law on easements including the creation of a statutory &urisdiction to modify easements and profit in similar fashion. he acceptance that an easement could still exist where the dominant and servient tenement was owned by the same person provided that the benefit and the burden of the easements were registered against the respective titles. he Law 3ommission considers that it would be appropriate to replace the current law relating to prospective ac(uisition with a single statutory method. here are many (uestions which have to be addressed in relation to the scope of any statutory reform in this area and one suspect that this will occupy a considerable amount of space in the final report once the consultation process has been completed. here are no proposals to change the essential definition of easements, although the need for the right to be clearly defined and not to involve unrestricted use of the servient tenement could be made statutory. WRITIN< ST=-E An Easement is a right in or over the land of another. In order to be an easement the right in (uestion must satisfy the following five characteristic as found in 2e Ellenborough 5ark, those are 10 there must be a dominant tenement and a servient tenement, /0 the easement must accommodate the dominant tenement, 10 the dominant tenement and a servient tenement must not be owned and occupied by the same person, *0 a right over land cannot amount to an easement unless it is capable of forming the sub&ect matter of a grant and B0 the right must be against other land. >pon viewing the facts, it may appear that the first / re(uirements would appear to be satisfied. An easement cannot be a right to possess of another land, the right claimed must not amount to &oint use of servient tenement by the dominant owner. he right to store can amount to an easement if it allows the dominant owner to store on part of land and not on the whole of it as found in 3opeland v ;reenhalf where a number of vehicles stored to another%s land was held not to capable of being easement but it was held to amount to a claim to &oint possession of the land.

? In order for a right to be an easement, it is not sufficient to satisfy the characteristic of an easement but re(uires the ways by which an easement can be re(uired. here are several methods i.e. express grant, implied grand etc. An express grant of an easement is usually made by the use of express words in the conveyancing of the legal estate and it is granted for a period of time, e(uivalent to freehold and leasehold estate, then the easement would be legal. Cere there is an oral grant, it has been held that an oral grant can succeed as an e(uitable easement when supported by an act of part performance as found in #c #anus v 3ooke. >nder 1=1/ Act, an oral consent raise a problem to claim the right under the shorter period but not the longer period. In regard to ac(uisition, it is submitted that 4 have ac(uired an easement either by oral express grant or by estoppels. In either case, the easement would rank as an e(uitable easement. he effect of e(uitable easement against the purchaser a serviant tenement turns on several factors including whether the land is registered or unregistered. In case of unregistered land an e(uitable easement must be registered as a 3lass !@iii0 of Land 3harge Act to bind a purchaser for value. According if that is registered land in nature, the subse(uent purchaser would be bound by it. In case of registered land, the e(uitable easement is an overriding interest by virtue of 3elsteel Limited v Alton Couse Coldings Limited and binds the subse(uent purchaser. Easement ac(uired under the 5rescription Act 1=1/ fall within the definition of legal easement as contained in "ec 1 @/0@a0 of Law of 5roperty Act 1A/B. As the land was registered land and the provisions of Land 2egistration Act 1A/B need to be considered. A legal easement )registered land+ is an overriding interest under "ec ?<@10@a0 of L2A 1A/B and such would automatically bind the new purchaser. he agreement was oral one and the easement did not created by deed, so no (uestion of legal easement can raise. $or the agreement executed between 4 and E amount to an e(uitable easement. .ut once upon a time it was possible to create e(uitable easement orally or without deed provided that it was for value and supported by part performance. .ut the Law of 5roperty @#iscellaneous 5rovisions0 Act 1A=A abolished the doctrine of part performance re(uiring agreement. here is no suggestion that servient tenement forced dominant tenement in order to get facility as a user, nor it is suggested that the user used it secretly. It is highly likely that dominant tenement knew the use by the servient tenement, as he has not made any ob&ection, so easement right was established. #oreover, failure to ob&ect can constructed an implied permission. Assuming that the servient tenement had ac(uired an easement, now the (uestion is would that easement bind new purchaser when he purchased the dominant tenementF 4 had ac(uired an easement by operating of the doctrine of proprietary estoppels, this methods cover the situation where no formal grant of an easement is made but an easement arose by the conduct of the both parties as found in Ives v Cigh where an oral promise, relied on by the promise to their detriment, granted an e(uitable easements. An easement created by estoppels can only be e(uitable.

= "ince 4 commenced the land /B years ago, it is necessary to consider the possibility of ac(uiring an easement by prescription and the user used the easement right without force. 6f the three methods of ac(uiring a legal easement, prescription is the one which may be most assistance to 4 under the 5rescription Act 1=1/. In order to establish a claim under this act to an easement other than light, 4 have to show that he use the land without interruption and within the time of statutory period i.e. shorter period is /< years and longer period is *< years.