Module Reviews: Land Law Part 3
- Holly Hoy
- Nov 22, 2020
- 5 min read
Updated: Dec 8, 2020
In the coming months we will be publishing a series of 'module reviews', providing a brief outline of our first-year modules at Newcastle University to help students get a basic understanding of each topic. In the month of November, we will be looking at land law, which is another one of the seven required modules to obtain a qualifying law degree.
In this third article in our land law series, we will be looking at easements. An easement is a third party right over another person's land, for instance a right to park a car or use a washing line on the land. They are classed as interests that are capable of being legal (s1(2)(a) Law of Property Act 1925) and regarded 'property rights' as they remain with the property itself regardless of who the title owner is.
DISCLAIMER: all information in these module reviews are taken from our own notes and research so please do not cite this in your work.
Test for Easements
The test for easements was developed in Re Ellenborough Park [1956] and has four requirements that need to be fulfilled.
(1) There must be a 'dominant' and 'servient' tenement. The dominant tenement is the land which enjoys the benefit of the right (e.g. they can park their car on other land), whereas the servient tenement is the land which is burdened by the right (e.g. where the car is parked). The person claiming the easement must own the dominant tenement to take use of this easement otherwise it would not fulfil its property right nature.
(2) The right (easement) must benefit the land, not specifically the owner of the land, and there are numerous factors which must be considered as part of this:
The two estates must be reasonably close - e.g. Bailey v Stephens (1862) noted it is impossible for an easement to exist if one was in Newcastle and one was in Kent as one land must benefit and the other burdened).
Right must have connection with the estate - e.g. Moody v Steggles (1879) concerned the right to place a sign on the end of a house row pointing down to a pub that wouldn't be noticed without the sign; this was ruled to be capable of being an easement as any owner of the pub would benefit from the sign, it was not specific to the current owner.
Whether a right to wander over the land at large (jus spatiandi) can exist - previously it couldn't however the case of Regency Villas v Diamond Resorts (2018) held that purely recreational rights over land which accommodate the dominant tenement may be the subject matter of an easement.
(3) The dominant and servient tenements must also have separate owners as you cannot hold a right against yourself.
(4) The right must be capable of being written into a deed for conveyance (transfer of land), which necessitates five further requirements:
There must be a capable grantor and grantee (i.e. the two parties who create the right must be over 18 and have the mental capacity to have the legal power to do so).
The easement must be able to be written sufficiently precise and definable into a deed to be clearly found and understood.
The easement must fall into the general nature of easements - it does not have to have been recognised before provided it is sufficiently similar.
The burden on the dominant tenement must be relatively minimal (i.e. it shouldn't cost them any money or stop them doing anything with their land) - with the exceptions of the right to fence land to keep in cattle, the right to light through a defined aperture and the right to support a boundary wall.
There must not be excessive use of the servient land as an easement is a limited right - if the owner of the servient land is left with little use then the right cannot be an easement (the test for reasonable use in England is outlined in Batchelor v Marlow [2001]).
Creation of Easements
Easements may be created by one of three methods - expressly, impliedly and by prescription (I will only look at the first two). When an easement is created, it may then be granted (given to someone else) or reserved (kept for you).
Express easements may be either legal, if created through a deed and registration (s1(1)(a), s52 LPA 1925 and s27 Land Registration Act 2002), or equitable, if signed in writing (s53(1) LPA 1925). Under Cannon v Villars (1878), the extent of the easement will be determined by the physical capacity of the land at the time of the grant, and, under Harris v Flower (1904), if the dominant land is enlarged, the easement cannot be used for the benefit of extension.
Within implied easements, there are four possible methods of creation: through necessity, by common intention, under the Wheeldon v Burrows rule or under the application of s62 LPA 1925.
Necessity occurs under common law and may be implied where an easement is absolutely necessary as the land is inaccessible by any other way. This necessity must arise at the time of purchase and there are three obligations that arise from Manjang v Drammeh (1991) which must be fulfilled: firstly there has to be a common owner of a legal estate in two plots of land, it then must be established that access between one plot and public highway can only be obtained over the other plot and there must be a disposition in one plot without any grant/reservation.
Common intention may imply both grants and reservations provided the test set out in Pwllbach Colliery v Woodman [1915] is satisfied. To fulfil this, the implication of the easement must be necessary for the enjoyment of some expressly granted right OR at the time of sale/lease the parties should have shared a common intention that the land be used in a particular manner and the easement is necessary to give effect to that intended use.
The Wheeldon v Burrows rule may only be applied to grants and is used in relation to quasi-easements (owner of a large plot of land sells part of it). These quasi-easements will become easements if they are continuous and apparent, necessary for reasonable enjoyment, used at the time of the grant and not contradicted by common intention.
Implied easements may also occur through statute under s62 LPA 1925. These apply only to grants and ensures that the easement is transferred with the land even if it is not expressly in the conveyance. To imply easements through this, the right must be capable of being an easement, it must be exercised at the time of the conveyance, it must not be excessively personal or temporary, there should be no contrary intention in the conveyance and there should be diversity in the ownership and occupation.
This concludes our week three land law review which I hope you have found helpful. As always this has only covered the very basics and there are numerous cases relevant to this area of the law so if you would like any further help please get in contact with us!
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