Reform of the law of easements

Characteristics of an easement : Law Com CP 186 (2008)

• Need for Dominant and Servient tenement
o At the moment, you need a dominant land to attach easements over a servient
land to.
 Proposed that should allow “easements in gross” i.e. easements over a
servient land
• e.g. right to place power cables or right of way over land
to reach helipad that belongs to neither Dom or Serv.
 Problems:
• Easements in gross = clogs to title
o LAW Com: Only allow express creation and make sure
easement registered w/ right allowed and person entitled
to enforce it
o Problem = nature of easement = runs with land, not
person – would this mean that Z would have to re-create
express easement w/ Y if land transferred from X to Z?
• Lead to servient land being burdened by excessive use
 Overall = keep rule
• Rule is certain
• Statues already get round problem in appropriate cases
(e.g. laying utilities)
• Don’t want to allow easement to be given for anything.
• Accommodation
o Retain current law b/c
 Well understood
 Prevents unnecessary burdening upon land by imposing personal rights
into land rights
 Needs to be available, unlike for leases,
• b/c leases are temporary in nature
o whereas easements can be indefinite.
o Problem = leases can be pretty long
 And rights within leases can be converted into
easements through s.62
 If not a problem of leases, why problem for
easements w/ freehold land in general?
• Owned/Occupied by different people
o Should adopt that proposed by Scot Law Com:
 Where two plots w/ easements fall into common ownership
• Easements should not be extinguished
o But should become “latent” until plots fall back into
common ownership.
o Problems:
 Might be difficult to discover “latent” easements =problem for future
purchasers
• Implied grants work already under Wheeldon v Burrows,
would perhaps be unnecessary change?
• Capable of Grant
o Too wide and vague?
 Current law requires that right be sufficiently defined