LAND LAW II

Easement Part II

ADV. VOLKAN KIRKALI

vo.kirkali@gmail.com
DEFINITION OF EASEMENT

• Easement is a right in alieno solo (over the land of another).

• Landowner can if they wish to grant certain rights over their land to another person that fall short of
a grant of possession.
• For example a right to lay pipes under his land to convey water or sewage
• Landowner may agree not to build on a defined portion of his land so as to ensure that light continues to
reach his neighbour's windows (an easement of light)

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NEGATIVE OR POSITIVE EASEMENT
• Restrictive covenants are particularly appropriate where the right granted is a 'negative’ one - that
is, one under which the grantor agrees not to use his land in a particular way:
• For example, not to erect a building on his land.
• Licences are more appropriate where the right granted is 'positive'-that is, one that allows the
grantee to use the grantor's land in a particular way:
• For example, to use a footpath on the grantor's land).
• Both types of right, positive and negative, can be created by easement.
• The one exception to this is the easement of fencing, which requires the grantor to maintain a fence
for the benefit of the grantee; this easement is well accepted, but it is anomalous, and has been
called a 'spurious easement'.

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 Formalities to Create Easements
CREATION OF • Creation in LAW

EASEMENTS IN • Express Grant (i.e. by deed)

• Must be by deed: s.52 LPA 1925

LAW • Must be registered: s.27 LRA 2002

• Express Reservation (i.e. by deed) Implied Grant Implied Reservation

Prescription (basically 'long use’)
• Express Reservation Same formalities as an express grant.
• Must be by deed: s.52 LPA 1925
• Must be registered: s.27 LRA 2002
• However, remember - if you are in the process of transferring legal title
of the estate, you will have to do each of these anyway.

Express Reservation: Contra Proferentum Principle

• In issues of ambiguity as to whether an easement has been created by
express reservation, the contra proferentum principle is applicable.
• Here, the right is interpreted in favour of the estate who benefits from
the right i.e. the dominant tenement. St Edmunsbury and Ipswich
Diocesan Board of Finance v Clark (No. 2) [1975].

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FORMALITIES TO
CREATE EASEMENTS
• Creation in EQUITY
• Contract (i.e. not quite a deed)
• Proprietary Estoppel (a bit like 'promissory estoppel,
but with 'property').

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IMPLIED GRANT AND RESERVATION
• IMPLIED GRANT
• Necessity
• Common Intention
• s.62 LPA 1925
• The rule in Wheeldon v Burrows
• Prescription

• IMPLIED RESERVATION
• Necessity
• Common Intention

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IMPLIED GRANT AND
RESERVATION: NECESSITY
• Access must be impossible without the easement, not merely
inconvenient –
Titchmarsh v Royston Water Co. [1899].
• If destruction of a barrier was required for access, an easement
can be created through necessity -
Sweet v Sommer[2005].

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IMPLIED GRANT AND
RESERVATION: COMMON
INTENTION
• Very high burden of proof - Peckham v Ellison
[1998].
• Test - 'The facts are not reasonably consistent with
any other explanation - it is not enough that they are
merely consistent with such an explanation' -
Cazelet, J.

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•Implied Grant: s.62 LPA 1925

• GRANT ONLY- this does not apply to reservations.

•(2) A conveyance of land, having houses or other buildings

thereon, shall be deemed to include and shall by virtue of
this Act operate to convey, with the land, houses, or other
buildings, all outhouses, erections, fixtures, cellars, areas,
courts, courtyards, cisterns, sewers, gutters, drains, ways,
passages, lights, watercourses, liberties, privileges,
easements, rights, and advantages whatsoever, appertaining
or reputed to appertain to the land, houses, or other buildings
conveyed, or any of them, or any part thereof, or, at the time
of conveyance, demised, occupied, or enjoyed with, or
reputed or known as part or parcel of or appurtenant to, the
land, houses, or other buildings conveyed, or any of them, or
any part thereof.
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 •Implied Grant: s.62 LPA 1925
•• Under s.62 LPA 1925, a licence can be turned into
an easement upon conveyance. See International
•Tea Stores v Hobbs [1903].

•Under s.62 LPA 1925, a quasi-easement can be

turned into an easement upon conveyance of the
dominant tenement.
•For example: If A sold the freehold title to Number
1, First Street to B, the quasi-easement can be turned
into an easement that B can use.

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•Implied Grant: s.62 LPA 1925

•Exercise of quasi-easement has to be "continuous and

apparent" - Wood v Waddington [2015]

•"Continuous" = regular use of quasi- easement

•"Apparent" = evidence of exercise of quasi- easement from

physical inspection of land

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