Published: 2021-09-13 09:40:09
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An easement essentially is a right in another’s land and confers both a benefit and a burden. Megarry & Wade[1] introduces easements by stating: – “The common law recognised a limited number of rights which one landowner could acquire over the land of another; and these rights were called easements and profits. Examples of easements are rights of way, rights of light and rights of water. ”
Easements can exist in all number of ways, including an easement to store goods as in Wright v Macadam[2] and an easement to use an airfield as in Dowty Boulton Paul Ltd v Wolverhampton Corporation. 3] However, the requirements to ensure the validity of easements can actually restrict the range of rights that can operate as easements. Some may argue that the law which governs the creation and acquisition of easements has been developed in a haphazard manner and is in need of reform. Indeed, Dr Martin Dixon[4] commented on this: – “Section 62 LPA 1925 is difficult to justify and usually operates only to rescue parties who have failed to specify what they really want or to catch out the innocent but unadvised land owner.
It is not clear that it has a role in a system of e-conveyancing. There are uncertainties about its precise field of operation, save that it operates only on grant. ” The conditions needed to satisfy the creation of an easement were set out in Re Ellenborough[5], whereby four rules were set out for a right to be capable of becoming an easement. Firstly, there must be a dominant and servient tenement, whereby the benefit of the right must attach to a piece of land and not that of the individual.
Secondly, the easement itself on the servient tenement must accommodate the dominant tenement, meaning that it is imperative that it is connected with its enjoyment as well as for its benefit, as in Hill v Tupper[6]. This rule has caused somewhat controversy over the years as this case, along with the case of Ackroyd v Smith[7] have showed the classification of easements to be closed and limited to only well-recognised types. The third rule in Re Ellenborough states that the dominant and servient tenements must be different people and therefore cannot be owned by the same person as in the case of quasi-easements.
Lastly, the easement must be capable of comprising the subject matter of a grant, which includes a number of ideas aimed at controlling the range of possible easements. For example; in order for it to become an easement, the right must be of a clear description and precise definition in its meaning and must not be solely used for the purposes of enjoyment. In Re Aldred[8] it was held that a right to a good view could not constitute as an easement. This would suggest that the acquisition of easements would be not to be found unclear as it warrants against creating miscellaneous definitions.
However, some may argue that this last condition in Re Ellenborough allows for judicial discretion and indeed flexibility within the system, as new easements can actually come to exist such as an easement to use a letterbox in Goldberg v Edwards. [9] The rules in Re Ellenborough simply act as a guide for the judge, but often a judge may choose to recognize an easement based on the needs of the property, the behavior of the parties and the circumstances regarding the case. Hence, in this view, the law is uncertain as it becomes somewhat difficult to assert if a new right will pertain to being an easement.
In relation to how easements are created, there are three ways in which it was recognised an easement could be created; by way of express or reserved grant, implied or reserved grant by operation of statute or lastly, by operation of prescription. An express grant is the most common way in which easements are created, whereby the owner of the servient land agrees in writing to grant the owner of the dominant land a right over their land for the benefit of the dominant land. ***
An easement may also come into being via an implied grant as mentioned previously, through reason of necessity, by the common intention of the parties, under the rule in Wheeldon v Burrows and Under Section 62 of the LPA 1925. However, the above methods of acquiring easements by implied grant can often overlap, as easements created by implication are more difficult to define, as it depends entirely on the facts and circumstances of each unique case whether or not an easement by implication can exist.
In terms of by way of necessity, a property to be conveyed can have an implied easement attached onto it, if the use of the easement is reasonably necessary for the enjoyment of the property and is apparent, continuous and in existence at the precise time when the property is being conveyed. Easements by implication are much harder to define. Whether or not an easement by implication exists will depend on the facts and circumstances unique to each case.
The established rule found in Wheeldon v Burrow is that on grant of the land, the grantee will acquire all easements which are continuous and apparent, and have been and are at the time of the grant being used by the grantor for the benefit of the land itself. Therefore, following the rule in Wheeldon v Burrows, easements operate in favour of the grantee and against the grantor, as the grantee will be able to claim as an implied easement a right over the land that has been retained by the grantor. However, the rule that the right must be necessary for the reasonable enjoyment of land poses a problem of sorts.
The right in question is not essential for the enjoyment of the land, but rather the right should accommodate the dominant tenement. This shows how imprecise the rules regarding Wheeldon v Burrow can be in certain cases, especially in Wheeler v J. J. Saunders Ltd. [10] In section 62 of the Land Property Act 1925, certain requirements are also laid down. This statute implies easements where there has been “some diversity of ownership or occupation of the quasi-dominant and servient tenements prior to the conveyance.
If the purchase is by way of deed, these rights automatically will be transferred along with the conveyance to the grantee unless expressly excluded in the conveyance as in the case of Wright v Macadam. [11] Additionally, the right must be enjoyed at the specific time when the conveyance occurs and the right has to be capable of being an easement, not merely just a permission granted as held in Green v Ascho Horticulturalist Ltd. [12] Turning to easements obtained by prescription, one could say this is similar to acquiring title by adverse possession.
It arises from uninterrupted use of land, whereby a non-landowner can gain the prescriptive easement in a property that he does not own if he meets all the requirements stated. Typically, these requirements include using the easement for twenty years (as ruled S. 2 Prescriptions Act 1832 and found in the case of Reilly v Orange[13]), ensuring exclusive control is maintained over it, using it continuously during this period and doing this in a manor which makes it clear to the current owner.

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