Easements in English law
Easements in English law are certain rights in English land law that a person has over another's land. Rights recognised as easements range from very widespread forms of rights of way, most rights to use service conduits such as telecommunications cables, power supply lines, supply pipes and drains, rights to use communal gardens and rights of light to more strained and novel forms. All types are subject to general rules and constraints. As one of the formalities in English law express, express legal easements must be created by deed.
Some classes, types, of easement are heavily constrained — the courts of England and Wales will only uphold these as easements subject to wide-reaching public policy, chiefly property rights interference, tests they have laid down in precedent. Similar tests apply to the implication of easements. If they fail on any of these tests the right claimed may be interpreted as a "mere" licence, typically a right of use revocable at will. Details of the use, wording and history of certain rights is pivotal. Prime examples of express purported easements which will only be upheld on particular facts are the use of a communal garden with a public dimension, a neighbour's lavatory, or use of parts of another person's land for parking.
In all cases the neighbouring, impacted, "servient" land does not have to be adjoining.
The necessity of easements is shown by the Law Commission's 2008 statistical finding that express easements exist over or under at least 65% of registered freehold titles. In many cases it is impossible for a land owner or tenant to access a public highway without an easement of a right of way over intervening land. The creation of easements is usually done expressly by deed, but easements may be implied where they are necessary, or would be reasonably expected to be held by a land owner, an approach which reduces legal fees but is not altogether uncontroversial, and has been the subject of recent reform proposals.
Characteristics of easements
Whilst an easement is essentially a right over another's land, any right claimed as an easement must satisfy the common law definition, outlined in the case of Re Ellenborough Park. Here, Danckwerts J laid out essential characteristics of an easement:- There must be a dominant and a servient tenement;
- The easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit;
- The dominant and servient owners must be different persons;
- The right claimed must be capable of forming the subject-matter of a grant.
Next, it must be shown that the right is connected with the enjoyment of the dominant tenement in some way. It is important to this end that the right must benefit an individual in their capacity as a land owner, and not merely form a personal right. For example, it has been judicially stated that a right of way over a plot of land in Northumberland to an estate in Kent would not form the requisite benefit, the proximity of the two pieces of land being too remote. It was recognised in Re Ellenborough Park however that an easement need not be over an adjacent property, though there must clearly be some reasonable connection in which the dominant tenement can be benefitted.
An easement can not be recognised where it the dominant and servient tenement are under common ownership. However, rights may be recognised as 'quasi-easements', which can then be implied as full easements upon the conveyance of the land in question.
The most problematic characteristic of an easement is that it must be capable of forming a grant by deed. The right must therefore be certain and definite in its purpose, and more importantly, that the courts are willing to recognise it as a right capable of being an easement. Many claimed rights fail this last criterion, for example, rights which require positive action by the owner of a servient tenement are unlikely to be granted, as are negative rights, which restrict the use of land. Rights which are excessive in nature are equally unlikely to be upheld. In Copeland v Greenhalf a claim to store unlimited vehicles on a neighbour's land failed, with the interference and right claimed being too great to be allowed as an easement.
Comparison with other rights
Easements are distinct from restrictive covenants and the court will not allow the creation of an easement where the right is in substance a restrictive covenant. Showing a restrictive covenant exists requires demonstrating different criteria are met and a restrictive covenant operates only in equity and not at the common law, whereas an easement can operate at either. An instrument that imposes a negative obligation on another tenement will normally be a restrictive covenant, although there are exceptions - the right to light, capable of being an easement, acts to prevent the owner of the servient tenement from acting inconsistently with it.Easements are also separate from natural rights, which operate universally and do not have to be created. Some natural rights appear similar to easements. For example, there is a natural right to support of one's land. This does not, however, extend to buildings upon the land or the consequences on the land of building upon it. The operate of prescription to bring about a right of support of buildings as well as land in the form of an easement limits the operation of this natural right, however. Natural rights are only actionable after the fact - where damage has already occurred; the neighbouring landowner cannot be compelled to take preventative steps or give support in any particular fashion. The right to water from a stream or river is another natural right which may be extended through the operation of an easement. Easements in this area must also be considered in light of statutory regimes, particularly in the commercial context. There is also a public right to fish and navigate on the foreshore, although this is limited in several respects.
Covenants are also separate to public rights. These include rights acquired as of custom - one being, for example, the right to hold a market in a particular location - thus acting in a similar way to an easement. However, in order to show a right as of custom it must be shown that the use dates back to at least 1189 and so these are rare. More common are rights of common. These are now regulated by the Commons Act 2006 which laid down a system of exclusive registration - all rights must now be registered if they are to operate. Thus new rights of common can only take effect by express grant. Rights of way often form the subject of easements, but public rights of way take effect without the need for a covenant. As well as the public highway, rights over common land and open country are also granted to the public, now regulated by the Countryside and Rights of Way Act 2000.
Creation of easements
Express grant
Section 1 of the Law of Property Act 1925 states that easements are an interest capable of being legal, with 52 of that act stating that all conveyances will be void unless created by deed. Therefore, for an express legal easement to be formed rather than simply equitable it must have been created by deed. A legal easement must be registered against the dominant and servient land, if their titles are registered, to take effect. The benefit of legal easements pass automatically on the transfer of the dominant tenement or part of the dominant tenement.Implied easement
Easements may also arise by implication where a vendor sells one plot of land but retains another neighbouring plot. Easements may arise in favour of the retained plot or the sold plot. Because a presumption operates that a vendor will have had ample opportunity to insert into the documents of sale a clause in his favour, the scope of implied reservation is much smaller than that of implied grant. Where the vendor sells two neighbouring plots both plots will fall under the rules of implied grant with regard to the other. Two plots sold at the same auction will fall under provision, for example, but a period of a month between contracts is too long. Implied easements act at law, not in equity, because the effect is the same as if the provision had been express. Any requirement of registration would clearly be incompatible with the concept of an implied easement, so none is applied.Implied grant
There are several circumstances where the grant of an easement may be implied, usually occurring on the conveyance of land. Where land is transferred, subject to contrary intention, existing easements are automatically conveyed under section 62 of the Law of Property Act 1925. Additionally – and controversially in some cases – 'precarious' rights, such as licenses or personal rights may be transformed into legal easements, as demonstrated in International Tea Stores Co v Hobbs and Hair v Gillman. In these cases a right of way granted as licences were held to have been legally transformed into an easement, following the conveyance of the impacted land. A limitation of the section is that it does not act to reserve easements impliedly; for example, a land owner in common ownership of two plots of land could not claim that, after selling one plot, his remaining plot should have an easement for right of light implied. Other circumstances where easements may be implied are where they are necessary for the enjoyment of land.Implied reservation
For reserved easements to be implied, they must be necessary either for the use of the land in general or for the use which the parties together intend the land to be put.The first of these categories covers those cases where the land would be landlocked but for the proposed easement, but seems to extend no further than that. It has long been the case that any access, even if by water or inconvenient, will be enough to defeat a claim of necessity, although there are signs that courts might be more willing in the future to consider a wider approach, perhaps only vehicular access. A claim of necessity will not be defeated by an access provided by revokable licence, or where a building would need to be demolished to use it. In Nickerson v Barraclough, the Court of Appeal decided that the necessity requirement was based on the presumed intention of the parties at the time of the grant. It should therefore follow that subsequent events cannot destroy an easement arising by implied reservation, although one pre-Victorian case suggested that it might.
The second category includes cases like Wong v Beaumont Property Trust Ltd. The defendant leased a series of cellars to the claimant, requiring that they be used only as a restaurant. In order to comply with trading laws, however, the claimant was required by law, if he wished to use the cellars as a restaurant, to install ventilation ducts on the part of the building retained by the defendant. The court decided to imply a grant in that case because it was necessary for the carrying on the business required in the lease. As stated by Lord Atkinson in that case, it must be necessary, not merely reasonable or common in properties of that type or in that location. Where the right is reciprocal, for example support, then the rules of necessity are more relaxed.