Easements are a strange part of land law because they are all about using a piece of property without actually owning it.
The legal definition comes from the 1955 case of Re Ellenborough Park which identified four pre-requisites:
*Dominant and servient tenement
*Diversity of ownership
*Benefit the land
*Subject of a grant
A dominant and servient tenement means there are two pieces of land. The owner of the dominant tenement has rights over the servient tenement.
Diversity of ownership means that two different people own the two pieces of land.
Benefit the land means that the easement must relate to the land rather than the owner or the owner's business as in Moody v Steggles (1879).
Subject of a grant means the right must be sufficiently certain. Access to a view will not be certain enough to constitute and easement as seen in Aldred’s Case (1610).
Easements should not impose obligations on the owner of the servient tenement; Regis Property v Redman [1956].
Nor should they restrict the rights of the servient tenement to deal with their own land; Phipps v Pears [1964].
The easement must not amount to exclusive use of the land; Copeland v Greenhalf [1952].
An easement cannot later be used for different purposes or have its use intensified; Jelbert v Davis [1968].
Legal easements are created by way of a deed whereas equitable easements are created by way of a written agreement.
For unregistered land, legal easements will be binding on all third parties whereas equitable easements must be registered as land charges.
When it comes to registered land, legal easements are registrable dispositions whereas equitable easements are minor interests. Legal easements will only be overriding if they were created:
*Before 13th October 2003
*By implied reservation
*By implied grant
*By prescription
Implied reservation includes necessity (Adealon International Corp Proprietary Ltd v Merton LBC [2007]) and common intention (Wong v Beaumont Property Trust Ltd [1965]).
Implied reservation includes the rule in Wheeldon v Burrows (1879) and s.62(1) of the Law of Property Act 1925 although s.62 is somewhat controversial for the way that it has been used to transform mere licences into easements (Wright v McAdam [1949]).
Prescription means the easement has come about simply through long-term use so long as that use is without force, secrecy or permission (London Tara Hotel Ltd v Kensington Close Hotel Ltd (2011).
Easements by prescription can come about in one of three ways:
*Common law
*s. 2, Prescription Act 1832
*Lost modern grant
Common law means the easement has existed since time immemorial (i.e. 1189).
Section 2 of the Prescription Act 1832 requires 20 years continuous use or 40 years where it is an oral agreement.
A lost modern grant means the courts will assume there is an easement if there is 20 years use without force, secrecy or permission.
Profits are similar to easements but include the right to take something from the land instead of simply a right of way etc.
They operate in a similar way to easements but:
*There is no requirement of a dominant tenement
* The rule in Wheeldon v Burrows does not apply
* The prescription periods are longer (30/60 years under the 1832 Act).
For consideration of reforms in this area, see the proposals outlined by the Law Commission: www.lawcom.gov...