2017/A/Q6

Easements Problem Question

Q. Tariq and Dominic question.

The question posed is pertaining to the laws on easements. These are proprietary rights that exist both
under law as per Law of Property Act 1925 (LPA) S.1(2)(a) and in equity. It is quite essential for the
purchaser of land to be aware of whether a third party has rights over their land and whether they are
bound by such existing rights. Easements are defined as rights which one landowner of the dominant
tenement enjoys over the neighboring land and that same land is the servient tenement of the
easement. Both the benefit and the burden of the easement apply to the land itself and not to those
who created it.

The abovementioned question has essentially two issues to be discussed in detail and analyzed
respectively. As per the facts, it can be concluded that Dominic owned the freehold title of both
Greenacre and Brookfarm prior to conveyancing. Tariq then purchased registered Greenacre from
Dominic and became the freeholder of that estate. The first issue is regarding whether Greenacre, who
is the servient tenement, will withstand the burden of the easement which is the ‘right of way’ for the
dominant tenement Brookfarm. However, it must first be established whether right of way can
constitute an easement. The second issue is regarding whether an advertisement sign can form an
easement and the servient tenement in this scenario is Brookfarm and Greenacre is the dominant
tenement.

Regarding the first issue, it is important to ascertain whether ‘right of way’ is capable of forming an
easement. The four-fold test for easements was laid down in the case of Re Ellenborough Park (1955).
Firstly, there must be a dominant and a servient tenement. As stated above, in this scenario, Brookfarm
is the dominant tenement and Greenacre is the servient tenement, London & Blenheim Estates Ltd
1993.

Secondly the easement must accommodate the dominant tenement, meaning that it should touch and
concern the land. Similarly, it must also increase the normal enjoyment of the land, Hill v Tupper (1863).
As per the facts, the easement is regarding ‘right of way’ and thus the courts would find that it touches
and concerns with the land. Moreover, it is also increasing the normal enjoyment of land as Brookfarm
was receiving and still wants to receive ‘right of way’ from Greenacre.

Thirdly, the dominant and servient tenements must be owned or occupied by different parties, Peckham
v Ellison (2000). Brookfarm is the DT which is owned by Dominic and Greenacre is the ST which is owned
by Tariq.

Lastly, it must be determined whether the easement is capable of forming the subject matter of a grant.
As per the facts, both Dominic and Tariq seem to be competent and capable of forming an easement.
Moreover, both of them have freehold interests over the land which allows for an easement to be
birthed, Wall v Collins (2007). Moreover, the nature and extent of ‘the right of way’ is clear in its ambit
as Dominic uses the right of way every once a week and crosses Greenacre to access his field, Browne v
Flower (1911).

Therefore, the courts would find that all four points of Ellenborough are satisfied and the ‘right of way’
will be capable of forming an easement. Moreover, Greenacre is not incurring any expenditure to keep
up with the easement benefitting Brookfarm. So the courts will determine that ‘the right of way’ is an
easement as no expenditure is being incurred by ST. The right of way also does not amount to an
exclusive possession so will be capable of being an easement, Regis Property Co Ltd v Redman (1956)
and Batchelor v Marlow.

However, it is important to ascertain whether the easement was expressly or impliedly formed. An
easement can be created expressly in two ways: express reservation and grant. An express reservation is
where the owner of the DT expressly reserves a right for themselves when they sell part of their land to
another. Whereas, an express grant is where the ST grants the right over the land to the DT. As per the
facts, these both do not apply here.

An implied easement can be both legal and equitable, depending on the character of the document into
which it is implied. There are two ways in which easements are formed impliedly through reservation:
necessity and common intention.

Implied easements of necessity form when the land bought would be useless without the existence of
an easement aiding it. For instance, in Nickerson v Barraclough, the only way of accessing land was by
the bridge, so the courts found that there was an easement of necessity for right of way. The courts
would most likely find that there is an easement of necessity for right of way for the cattle as without it
Brookfarm’s cattle would not be able to survive without accessing the field for grazing. However, this is
up to the discretion of the courts as the threshold for an easement of necessity is quite high, Adealon
International Corporation Pty Ltd v Merton LBC (2007).

Similarly, an implied easement of common intention would not be able to be found. This is because
Brookfarm intends to use the pathway for his cattle grazing. On the contrary, Greenacre does not intend
to allow Brookfarm’s cattle to use right of way as he wants to construct buildings on his land.
Subsequently, he planted prickly bushes along the path and padlocked the gate between Brookfarm and
Greenacre clearly showing his intention that he will not allow Dominic to use the right of way, Wong v
Beaumont Property Trust Ltd (1965).

However, it is quite likely that an implied easement of necessity will be found by the courts in relation to
right of way for cattle and Tariq would be bound by the easement.

In addition to this, it is important to ascertain whether the implied easement of necessity will be legal or
equitable. As per Land Registration Act 2002 Schedule 1 para 3, expressly made legal easements on
registered land will bind the first proprietor and all subsequent transferees of the ST. As per LRA 2002
schedule 3 para 3, impliedly created legal easements may override if they are known to or reasonably
discoverable by the purchaser or have been used within a year before the purchase of land. Moreover,
the same schedule stated that impliedly made equitable easements cannot override subsequent
purchasers. As per the facts, it cannot be ascertained whether the easement was legal or equitable so it
will be upon the courts to decide whether the criteria has been met or not.

Regarding the second issue, it is important to ascertain whether an advertisement sign is capable of
forming an easement. The four-fold test for easements was laid down in the case of Re Ellenborough
Park (1955). Firstly, there must be a dominant and a servient tenement. As stated above, in this
scenario, Greenacre is the dominant tenement and Brookfarm is the servient tenement, London &
Blenheim Estates Ltd 1993.

Secondly, the easement must accommodate the dominant tenement, meaning that it should touch and
concern the land. Similarly, it must also increase the normal enjoyment of the land, Hill v Tupper (1863).
An advertisement sign was held to be touching and concerning the land and it was held to be increasing
the enjoyment of land, Moody v Steggles (1879). Therefore, by drawing analogy it would be held that
this point is satisfied as Greenacre will receive the benefit of their business being advertised to the
general public by placing a large advertisement sign on Brookfarm’s barn wall.

Thirdly, the dominant and servient tenements must be owned or occupied by different parties, Peckham
v Ellison (2000). Greenacre is the DT which is owned by Dominic and Brookfarm is the ST which is owned
by Tariq.

Lastly, it must be determined whether the easement is capable of forming the subject matter of a grant.
As per the facts, both Dominic and Tariq seem to be competent and capable of forming an easement.
Moreover, both of them have freehold interests over the land which allows for an easement to be
birthed, Wall v Collins (2007). Moreover, the nature and extent of ‘the right of way’ is clear in its ambit
as Dominic used the advertisement sign for the Farm shop his father owned on the same barn wall and
Tariq should be able to do the same.

Hence, the courts would find that all four points of Ellenborough are established and the advertisement
sign will be capable of forming an easement. Moreover, Brookfarm is not incurring any expenditure to
keep up with the easement benefitting Greenacre. So the courts will determine that an advertisement
sign is an easement as no expenditure is being incurred by ST. The advertisement sign also does not
amount to an exclusive possession so will be capable of being an easement, Regis Property Co Ltd v
Redman (1956) and Batchelor v Marlow.

However, it is important to ascertain whether the easement was expressly or impliedly formed. An
easement can be created expressly in two ways: express reservation and grant. An express reservation is
where the owner of the DT expressly reserves a right for themselves when they sell part of their land to
another. Whereas, an express grant is where the ST grants the right over the land to the DT. As per the
facts, these both do not apply here.

As stated above, implied reservation of necessity and common intention will also not be applied to the
facts of this particular scenario. Rather a grant made impliedly made apply on the easements. There are
two types of implied easements made through a grant: as per s.62 of LPA 1925 and by the rule in
Wheeldon v Burrows (1879).
By virtue of the facts, both Tariq and Dominic are freeholders. Therefore, s.62 of LPA 1925 will not apply
on this easement, Wright v Macadam. For an implied easement to be created under Wheeldon v
Burrows three key elements have to be established.

Firstly, the use of the right by Dominic must be continuous and apparent before the sale of the land
which was commonly owed by Dominic, Hansford v Jago. As per the facts, the advertisement sign was in
use by Dominic when Tariq had occupied Greenacre. This means that the advertisement sign was in
continuous and apparent use by Dominic prior selling to Tariq.

Secondly, it must be necessary for the reasonable enjoyment of land. As per the facts, Tariq wants to
attract tourist for his accommodation which is the main purpose of the building. Therefore, it would be
held to be necessary by the courts, Wheeler v JJ Saunders (1995).

Thirdly, the right must be in use by the common owner at the time of the grant. As per the facts, the
advertisement sign was used by Dominic prior to and up to the time of conveyancing of land to Tariq.
Thus, the courts will find that a quasi-easement exists under Wheeldon v Burrows since all 3 points have
been established and Dominic will be bound by the easement.

As previously mentioned, it is up to the courts to establish whether the criteria for legal or equitable
easement have been met by Tariq and Dominic as there are not enough facts to establish this.

Conclusively, the right of way will be held to be an easement which was impliedly created through a
reservation of necessity. The advertisement sign will amount to an easement which was impliedly
created through grant under the rule in WvB.