Acquiring a Right Over Another’s Land
A right over a piece of land for the benefit of another piece of land, such as a right of way or a right to use services running under the land is called an “easement”. The land which benefits from an easement is called the “dominant tenement” or “dominant land” and the land which is subject to the easement is the “servient tenement” or “servient land”. There are several ways in which an easement can be created and once it exists then subject to certain exceptions, it exists for all time for the benefit of the dominant land.
Before I explain the various ways in which an easement can be acquired, it’s important to understand some of the law surrounding easements and rights.
When is an Easement not an Easement?
Not every right that a person can have over a piece of land is an easement. It could simply be a licence, in which case it would not pass to the purchaser once the dominant land and would not bind the servient land if that changed hands.
The conditions which have to be met in order for a right to be an easement were set out in Re Ellenborough Park [1956]. They are as follows:
There must be a dominant and servient tenement – the benefit of the right must attach to a piece of land rather than an individual. For example if there is a right for the owner of a particular property to go across the back garden of a neighbouring property to access the road then this could be an easement. The dominant tenement is the land which benefits from the right and the servient tenement is the land over which the right is exercised. If however someone were to put up a sign on their land saying “please feel free to use my garden as a short cut”, this could not be an easement since it does not benefit a particular piece of land.
The right must benefit the dominant land – this means that the right must be capable of benefiting any owner of the land and not just the occupier for the time being. A good test is whether the loss of the right would affect the value of the property. A right of way which was the only access to the property would clearly be capable of being an easement however a right to erect a sign advertising a business, where the dominant land is a residential property, would benefit a small percentage of potential owners and could not therefore be an easement.
There must be diversity of ownership – in other words the dominant and servient lands must be owned by different people, as a person cannot have (and of course does not need) an easement over his own land. In these circumstances a quasi-easement may exist, which will be discussed later.
The right must be capable of forming the subject matter of a grant – it has to be capable of being expressed as a written document (whether or not it is actually in writing), has to be similar to existing easements (this means it has to be similar to something that is generally considered an easement, such as a right of way or a right to use services. A right to play tennis in a person’s garden would probably fail), must not require any expenditure on the part of the servient tenement and it must be sufficiently definite, which is to say it must be exercisable within a defined area. A common example of a right which would fail the test of an easement is a general right to a view, but a right of way over large country estate which was not confined to a particular road or path may also fail.
It is also not possible for an easement to exist if it effectively means that the beneficiary has “exclusive possession” of the servient land, that is the owner of the servient land is deprived of any reasonable use of it. Whether or not the right amounts to exclusive possession is not always clear and there have been several important cases recently, particularly surrounding exclusive rights to park, but that discussion is outside the scope of this article.
Legal and Equitable Easements
There are two types of easement, legal and equitable. A legal easement “binds the world”; this means it is exercisable against any owner of the servient land regardless of whether they are put on notice of it. It can only come to an end by express release, i.e. the owner of the dominant land executes a deed in favour of the owner of the servient land releasing it, or by abandonment, where the right is not exercised for a sufficient number of years.
An equitable easement on the other hand will only bind a purchaser of the servient land if he has notice of its existence. A purchaser is treated as having notice if the easement is protected by a notice in the charges register of the servient land (or in the case of unregistered land, a land charge is registered), he is told of the existence of the easement prior to his purchase or it is apparent from inspection, such as if there is a clear, well worn track running across the land. The fact that a purchaser has failed to inspect the property or the legal title does not allow him to deny that he had notice of the easement.
We’ll discuss the necessary criteria for a deed to be considered legal, as opposed to equitable, shortly.
Acquiring an Easement
There are 3 ways in which an easement can be acquired, express grant or reservation, prescription or implication.
Express Grant / Reservation
This is where the right is granted by deed. In most transfers of part of a title, for example when a property is purchased on a brand new development, the transfer deed will include a number of rights which benefit the land, such as a right of way over other parts of the development or a right to use services (water pipes, electricity cables etc) which cross other parts of the development. The deed will also reserve similar rights over your land for the benefit of other properties on the development.
Of course an easement does not have to be granted in a transfer deed, the owner of a piece of land can grant easements at any time. For a legal easement to be created by express grant, it must be created by deed and must be for a term equivalent to a legal estate (i.e. it must be exercisable for all time, as a freehold estate exists for all time, or must be for a fixed term of years, as a leasehold estate is granted for a fixed term). These requirements are set out in section 1(2) Law of Property Act 1925. A right not granted for a term equivalent to a legal estate, for example one granted for the lifetime of the beneficiary, or not created by deed, may still be an easement but if so it will be an equitable easement. As a minimum however it must be in writing (section 53(1) Law of Property Act 1925).
For a document to be a deed it must satisfy certain criteria. It must be clear on its face that it is intended to be a deed (for example by calling it a Deed of Easement or Deed of Grant or by using the phrase “Executed as a Deed” in the signature clause (more properly the “attestation clause”)), it must be signed and witnessed and it must be delivered. Delivered simply means handed over willingly, so that you are only bound by a deed if you give it to the beneficiary (or act in some manner which demonstrates an intention to deliver it). Merely signing a deed does not bind you.
Prescription
It is possible to acquire an easement by “long user” even though no right has ever been granted. This is known as a prescriptive easement and if its existence is established it will be a legal easement. Under the Prescriptions Act 1832, if a right has been exercised for 20 years or more it will be an easement and if it has been exercised for 40 years or more it will be indefeasible. In either case it must have been exercised openly, continually and without hindrance, licence, payment or permission of any kind.
A statutory declaration, that is a declaration sworn in the presence of a solicitor, that the above criteria apply to a claimed easement is sufficient evidence, provided no evidence is produced by the owner of the land to the contrary, that the right has been acquired and can be used to register a notice on the title to the affected land. That notice will then protect the easement and allow it to be exercised in future.
Implication
A third way of acquiring an easement is by implication, which is where, even though an easement has not been expressly granted, it is clear that it must have been intended. There are three ways in which an easement may be implied, and they are as follows:-
Necessity
The courts are very strict on allowing an easement to be acquired by necessity. It can only be applied to a right of way and only if the land claiming the benefit is completely landlocked. It will not apply where the lack of a right of way is merely inconvenient, for example if there is access to the property from a public highway but only via a steep, rocky embankment and it is also possible to access the property via neighbouring land but no right of way exists over that land then it is unlikely a claim to a right be necessity would succeed.
Common Intention
If a right which is required is not granted in a lease or conveyance but it is possible to demonstrate that it must have been the intention of the parties for the right to be granted then it might be possible to claim it through the principle of common intention. As an example, in Liverpool City Council v Irwin [1977], Irwin was a tenant in a high rise block of flats and but the tenancy agreement contained no rights to use the communal staircase or lifts. It was decided that rights were implied since it made no sense to grant the tenancy but not to allow access to the flat therefore it must have been the intention of the landlord (Liverpool City Council) to include the rights in the tenancy agreement.
The Rule in Wheeldon v Burrows [1879]
Earlier in this article I referred to “quasi-easements”. These are rights which would be easements but for the fact that both the dominant land and servient land are owned by the same person. If the dominant land is sold then the quasi-easements can become full easements. For this to happen the right claimed must be necessary for the reasonable use and enjoyment of the dominant land and its use must be “continuous and apparent”. This means it must have been in use immediately before the sale and its use must have been obvious from inspection.
It is important to note that this rule only assists a purchaser of the dominant land. If a person sells part of his land and needs a right over the land he sells for the benefit of the land he retains but fails to reserve that right in the transfer deed then he cannot rely on Wheeldon v Burrows, though depending on the circumstances he may be able to claim a right by necessity (see above).
Licences
It is possible to give or receive a licence to exercise a certain right. If the arrangement is put in writing it can be made clear that no easement will arise and also the terms, such as when it can be exercised, when it will begin and end and what (if any) payment must be made can be specified.
A licence could for example be used to give someone the right to park a car on your land in exchange for a regular payment.
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