Legal or equitable?
An easement can be legal or equitable. This is an important point. If the easement is legal, it can be overriding under the Law of Property Act 1925 s70(1)(a) ("LPA") and therefore binding on a purchaser of the property. If the land is unregistered then a notice must be put on the charges register in order for the easement to be binding on the purchaser.
In short, when a person has an easement, the person will want know that the easement will endure. Registration of the easement, or an overriding interest allows for protection of the easement. In our earlier example of a right to drainage (Atwood v Bovis Homes Ltd), the part who would derive the benefit of the easement (the use of the drains) would want to protect their easement by registering it below, or would claim it was an interest which overrides the purchasers rights.
How is an easement granted?
So, now we know what we need for something to be capable of being an easement, and we know that easements can take different forms and need protection in differing way. We know if a potential right cannot satisfy Re: Ellenborough Park and all of the other requirements, then there is no easement, and none will be granted.
But what if it is capable of being an easement? The next stage is to see if the easement has actually been granted.
To be a legal easement (as per LPA s1(2)) it must last satisfy the following requirements:
- It must be granted for either a fixed term or forever.
- Created by Deed (as per LPA s52(1)).
Acquisition by express grant –
- By deed - this usually happens on sale of part of a property. Any ambiguity will be construed against the seller.
- Through s62 of the LPA 1925 – this is where a person has a licence to do something, on grant of a new Lease, this is a conveyance in the meaning of LPA and the licence is elevated into an easement. This happened in Wright v Macadam. This interpretation has been recognised in LRA 2002 s27(7). Again, the land must be in separate occupation (Sovmots)
Acquisition by implied grant – this can happen in the following ways:
- Easements of necessity – this is only where the easement is absolutely needed, not when it is just useful. This is basically therefore, only if the land is land locked. The case here is Wong Steggles v Moody Beaumont.
- Intended easements – can be derived from common intention.
- Easements under Wheeldon v Burrows – this is where an owner of two pieces of land sells the part which is burdened and retains the benefited land. The owner then wants to claim an intended easement. To do so, the owner must have been using the easement themselves at the time of sale, for the reasonable enjoyment of the land and the right must be continuous and apparent. (If it was used by the owner and/or for reasonable enjoyment and is continuous, this appears to be enough). The right must simply be for enjoyment, but not in J.J. Saunders v Wheeler a second right of access was not held to be enough.
Note: diversity of occupation is required by s62, but not by Wheeldon v Burrows. Whereas in Wheeldon v Burrows are restricted by the 3 requirements s62 is not. S62 is limited to conveyances, whereas Wheeldon v Burrows could operate on the grant of a Lease.
Acquisition by prescription – this is where an easement is gained through long usage. This is governed by the rule laid out as – nec vi, nec clam, nec precario – the right must have been used not by force, not with permission and not by stealth.
So, in summary:
1. Check if a similar easement already exists. If not, go through Re: Ellenborough Park;
2. Check that the additional rights are satisfied (not negative etc);
3. Check if the right has been acquired legally or equitably;
4. Make sure that the easement has been registered.
Well done, now you should have a basic grasp of easements.
 Previous: Easements Part II
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