Easements and Profits Introduction to Easements Freehold ownership is as near to absolute ownership as English Law allows, and leasehold

d ownership enables the tenant to have exclusive possession and considerable control of land for a defined or repeated periods of time. Easements however, allow third parties more limited rights, legal or equitable over another person's land. The most common easements are right of way and right of light. They can be granted in a number of ways, such as: by specific grant by implication from conduct prescription (use over a period of time). Priority rules for easements depend on whether they are legal or equitable easements, and whether it is registered or unregistered land. Essential Characteristics Categories not closed The Courts have been prepared to recognise net categories of positive easement in light of changing social needs, e.g. car parking, but are less enthusiastic about negative easements, e.g. protection from weather. Dowty Boulton Paul Ltd (No. 2) [1976] held that Council's decision could not be overturned and the airfield was discontinued. New easement recognised was right to move aircraft across land. Examples of Easements Differentiate between Easements and Profits a Prendre A profit entitles the owner of the profit to take or extract some material benefit from the land, as opposed to simply using it for some purpose. Profits would include right to reap crops, pasture cattle or shoot game. Easements have since been referred to as privileges without profits. Examples of profits: Turbary Piscary Estovers Something old, something new Differentiate other interests Easements should be distinguished from other similar rights, such as tortious rights where a duty of care is owed as in Holbeck Hall Hotel [2000] public customary rights where rights have been used from time immemorial (1189, or as far back as legal memory goes) other public rights rights to navigate and fish in tidal waters. Windsor Corporation v Mellor [1975] Village Green had been used as a site for lawful sports and pastimes for over 300 years and was registerable as village green. Held that this public right could not be lost due to disuse or abandonment, and so W.C. Could not register the green for themselves. Positive Characteristics Leading Case Re Ellenborough Park [1956] LOOK UP! Dominant and Servient Tenements The dominant tenement is the parcel of land that has the benefit of the easement (or covenant). The servient tenement is the parcel of land that is subject to the easement, i.e. the land over which the right is exercised.

 Alfred F Becket Ltd v Lyons [1967] A claim was made by inhabitants of Durham that they had a right to collect sea-washed coal from a stretch of foreshore. Held, that walking, bathing and beach-combing, though tolerated by the Crown, give rise to no legal rights in the public. Supplementary Rules The right must accommodate the dominant tenement i.e. it must benefit the land itself rather than simply provide a personal advantage to the owner. Sufficient geographical nexus is needed between the dominant and servient land. Accommodation may be by reference to specific user e.g. business or recreation/leisure. The essence of accommodation is that the rights are only of real value when annexed to neighbouring land, more so than they would be if separate. Business Examples Hill v Tupper [1863] Plaintiff leased land adjoining canal and lease provided rights to put and use pleasure boats on the canal. Defendant was landlord of nearby inn who did the same thing, plaintiff claimed that he had the exclusive right to an easement for that purpose. HELD LOOK UP! Wong v Beaumont Property Trust Ltd. [1965] Tenant had to sue the landlord for right to install a ventilation duct in basement restaurant. Leisure Examples Mounsey v Ismay [1865] Freemen and citizens of Carlisle claimed they had an easement to use land for annual horse racing on ascension day. HELD Mulvaney v Gough [2002] Trustees of a parcel of land destroyed a flowerbed that Mrs Mulvaney had made and looked after. HELD Ownership of Tenements Dominant and Servient Tenements must be owned by separate persons This is common sense, if X owns two adjacent parcels of land, she would not need an easement to go across her own land. However, if Y owns land in Gloucestershire, and Z owns land in Cumbria, there cannot be an easement over one as the geographical nexus ruling is not satisfied. Todrick v Western National Omnibus Co. [1934] The right must be capable of being the subject matter of a grant. It must be sufficiently definite... ...of a type recognisable as an easement, although the categories are not closed... ...not amount to actual possession and... ...not require the servient owner to take positive action. Case Law Bass v Gregory [1890] Ventilation to a cellar allowed access of air through a pipe into a disused well and the question arose whether this could amount to an easement. Held yes it could. Copeland v Greenhalf [1952] Batchelor v Marlow [2003] High Court held that Marlow had an easement to park up to 6 cars between 09.30 and 18.00 Mon Fri on land owned by Batchelor, who appealed. Held Creation of Easements Requirements To create a legal easement, it must be granted for a period equivalent either to a fee simple absolute, or a term of years absolute, and additionally appropriate formalities must be observed, otherwise it takes effect in equity, or as a licence.

 Express Acquisition For express grants, there are two possibilities, i.e. the: owner of the servient tenement (S) grants an easement to the owner of the dominant tenement (D) land previously entirely owned by S has in part been transferred to D with the benefit of an easement, and S has retained some land that is now servient. Other rules for express grants: if the easement is made by deed complying with LP(MPs) Act 1989 it will be legal, whether incorporated in a conveyance or granted as a specific deed of easement if it is expressly granted but not by deed, it will operate as either a licence or as an equitable easement a valid contract to grant an easement operates as an equitable easement legal easements, however short, must now be registered under s.27(2)(d) LRA 2002, and there must also be entry of notice on the servient owner's title. Implied Acquisition When A conveys land to B he must give full effect to doing so, i.e. he must not derogate from his grant (hold anything back) and to ensure that is done the law will automatically imply that A granted the necessary easements to B for him to make proper use of the land, which is taken to be their common intention. Implied grants of easement do not require registration, and there are three kinds of easements implied by: necessity common intention of the parties previous enjoyment by the grantor (quasi-easements) Case Law Barry v Hasseldine [1952] Pwllbach Colliery Company Ltd v Woodman [1915] Stafford v Lee [1993] S obtained planning permission to build dwellings on his vacant land and claimed right of way over his neighbour's drive to gain access. He based the claim on the idea that there had been an intended easement for such a purpose when he originally bought the land. L argued there was no such evidence that the land was to be used for housing. HELD Wheeldon v Burrows [1879] Important case as it was the common law way of gaining protection for a buyer which allowed him to use pre-existing easements. Now, s.62 LPA 1925 provides the statutory provision: Basic Rules Express Reservation Where the transferor D previously owns all the land and transfers part to S, but wishes to retain rights in the nature of easements over the servient tenement, he expressly reserves them from the grant, rather than requiring S to grant them back to him. By s.65 LPA 1925 the common law rule that this only worked where the transferee executed the conveyance was abolished, so only the signature of the transferor is now strictly necessary. s.27(2)(d) LRA 2002 requires that an express reservation must be completed by registration. Implied Reservation The Courts are much less willing to imply the reservation of easements, as documents are construed against the grantor who is taken to have acted in his own interest, but there are two narrow exceptions of implied reservation: an easement of necessity

 where there is common intention Re Webb's Lease [1951] s.62 LPA 1925 This important section deals with statutory creation of rights and privileges (which may amount to easements) when land is conveyed (whether or not they are actually set out in detail). It applies to all conveyances but is sometimes necessary to deal separately with the situation where some land is sold off but other land is retained, as this can create a new dominant tenement in the land sold off, and a servient tenement in the retained land, for the purpose of creating reciprocal rights and obligations. Why is this? Usually when all the land was in single ownership because of unity of ownership, no separate easements and rights previously existed. Usually because even though there may have only been one previous freeholder, there could have been other rights such as licences that might be converted into easements. After separation from the retained land, the existence of separate titles means that reciprocal rights and obligations need to be defined and created. So s.62 operates to transfer automatically such matters as had previously applied to the land as a whole: Physical things buildings, fixtures, fences, ditches and watercourses Interests liberties, privileges, easements, rights and advantages Services cisterns, sewers, gutters, drains, passages and watercourses It also means that: Where land is sold in its entirety, what were previously easements are continued in the transferred title, whether identified or not in the conveyance. Rights enjoyed by the land conveyed over the land retained (which were not easements due to unity of ownership) are converted into legal easements. Quasi-easements i.e. rights analogous to easements such as licences may also be converted on conveyance into easements. Wright v Macadam [1949] A tenant was allowed to store coal in a shed on the landlord's land, and this was upheld as an easement even though on the facts of the case the landlord would not have had any access to the shed at all. Other essential aspects of s.62 are that it: only operates where there is a conveyance of land bearing in mind that conveyance is defined in s.205(1)(ii) LPA 1925 as including a: mortgage charge lease assent and various other vesting documents and releases only operates where there was previous diversity of occupation (explained in Sovmots Ltd.) will only convert previous rights into easements if they have all the characteristics required of an easement will not operate in a conveyance if the document specifically excludes the section easements so created do not need to be registered by virtue of s.27(7) LRA 2002. Case Law International Tea Stores v Hobbs [1903] Held Sovmots Ltd v Secretary of State for the Environment [1979] Prescription

 Acquisition Acquisition of easements by prescription is equivalent to acquisition of title to land by adverse occupation and the general requirements are that the user must have been: nec vi, nec clam, nec precario without force, without secrecy, without permission, in other words, open and above board. Peaceful Without permission Lawful Exercised by the freehold owner of land R (Lewis) v Redcar & Cleveland Borough Council [2010] Walker LJ held that a reasonably alert owner of the land could not have failed to recognise the user was asserting a right. Basis of prescription The doctrine of adverse possession is based on the idea that long use entitles the user to acquire full title, whereas the doctrine of prescription is based on the fiction that the user was at some point in the past granted the easement which is a lesser right over someone else's land than full ownership. It may derive from one of three criteria, i.e. the right is: presumed to derive under the common law from time immemorial presumed to derive from a lost modern grant actually derived from statute i.e. the Prescription Act 1832. Common Law If a person wants to claim she has an easement under the common law, she has to show that the right goes back to time immemorial, which as it is 1189 is almost impossible. If it could be shown that the right could not have been enjoyed at any time, it will be defeated. Arbuthnot [1880] Doctrine of Lost Modern Grant Because it is so difficult to prove exercise rights since 1189, an easier test based on legal fiction was developed the claimant could allege there had been an actual grant which has survived continuously for 20 years but had been lost. It is not defeated by evidence that there was no such grant, but by nobody could have made it. Tehidy Minerals Ltd [1971] Even where there was evidence that no grant had been made, the right was still allowed by the Court. Prescription Act 1832 Described as the worst drafted act on the statute book, and attempts to deal with difficulties caused by prescription under the common law and the doctrine of the lost modern grant. Established two periods of time needed to succeed in establishing an easement: 20 years continuous and uninterrupted use immediately before the claim (but can be defeated if shown that it was used with the owner's consent). 40 years continuous and uninterrupted use immediately before the claim (but cannot be defeated even with owner's permission, unless it was given in writing). The Act also states that 20 years right to light make it absolute and indefeasible unless it was by written consent. In order to work out whether a claimed right exists as a legal easement under the Act, five questions need to be asked: How long has the right been enjoyed? Has there been any interruption to the right? Was it immediately before the claim?

 Has any consent to the use of the right been given by the landowner? If so, in what form was the consent given? Cases Prescription, by whatever method, is best understood and explained by reference to cases. Sturges v Bridgeman [1879] The Act fixes periods for the acquisition of easement, but, except in regard to the particular easement of light...it does not alter the character of easements, or of the user or enjoyment by which the are acquired. Gardner v Hodgson's Kingston Brewery Co Ltd. [1903] Held that it was an Act for shortening the time of prescription in certain cases, and really,, it did nothing more. Reilly v Orange [1955] - the commencement of the suit or action...is clearly not an interruption within the meaning of s.4, but is the event in which the user must show that the enjoyment was for a period of 20 years uninterrupted. Estoppel The general doctrine of estoppel operates on easements as in other areas, so even where there is no grant or contract, a landowner may be estopped from denying the existence of an easement. Ward v Kirkland [1967] Equitable Easements These arise in two situations where: the grant is not equivalent to a fee simple absolute or term of years absolute there is an enforceable contract for the grant Scope of Entitlement Conferred Rights of Way In addition to the actual existence and status of an easement, its size and extent is also crucial, e.g. the question that needs to be asked is whether the right of way is: on foot with a pram or bicycle or motorcycle by vehicle any vehicle? Car or JCB or articulated lorry 10' or 20' in width? Available at all times? And so on because use in excess of entitlement = trespass. Basic Principles A grant is construed against the grantor (also known as the contra proferentem rule the rule of contractual interpretation which provides that an ambiguous term will be construed against the party that who put it in the agreement. The relevance of the physical condition of the land at time of the grant More onerous includes less onerous later changes in use of dominant land enlargement of dominant tenement Case Law White v Richards [1994] (1994) 68 P&CR 105, in which the court considered an express easement granting a right of way over the claimants land with or without motor vehicles. The court considered the physical characteristics of the track at the date the grant was created; it was 9ft wide and resembled a dirt track. Given the unsuitability for

passage along the track by large vehicles, it was held that the term motor vehicles as to be restricted to vehicles of a certain dimension and weight. White v Grand Hotel Eastbourne Ltd. [1913] A general purpose right of way is not to be restricted to access to land merely for such purposes as were reasonably required at the date of the grant. British Railways Board v Glass [1965] The principle is that an express general grant or reservation of a right of way will not be limited to the use contemplated when grant was made. But a prescriptive right of way is limited to the kind of use by which it is acquired, though a mere increase in the amount of that kind of use does not amount to excessive user Rights to Light These rights are restricted in two ways, i.e. to: buildings sufficient light for comfortable enjoyment and user Levet v Gas Light and Coke Co. [1919] Held that there is no right to light through a door. Carr-Saunders v Dick McNeil Associates [1986] held principle is that a dominant owners right under the Prescription Act 1832 section 3 is an easement for access of light to a building, but not to a particular room in the building. Wrongful Interference Wrongful interference by the servient owner with the excuse of an easement is actionable by the dominant owner in nuisance but only if it sufficiently adversely affects enjoyment. Extinguishment and Variation Release The basic rules are: The release of the burden of an easement by the dominant owner is equivalent to a surrender of a lease it can arise expressly or by implication from behaviour, and once done cannot be revived. Express release is done by deed, but estoppel may operate. Abandonment of an easement is taken as being implied release. Case Law Tehidy Minerals v Norman [1971] The period of the easement must be up to the date of the action and any break before the action will make the period ineffective. Unification of Title and Possession The rules are that if the: Dominant and servient tenements are acquired in one identical title (i.e. both freeholds) by a single owner, all easements are extinguished. Interests are different (i.e. freehold and leasehold) then the easements are suspended. Easements rendered obsolete A change of circumstances might extinguish an easement by frustration Huckvale v Aegean Hotels Ltd. [1989] An interlocutory injunction would be granted to restrain interference with Huckvale's right of way as there was a serious triable issue whether the easement had been extinguished. So the principle is that an easement might be extinguished where there is no longer any practical possibility of it ever benefiting the dominant tenement. Variation Unilateral variation is not recognised, but the mutual agreement of the dominant and servient owners may achieve it.

 Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] L&QHT and eight other defendants enjoyed a right of way over a road, which the healthcare trust proposed to realign so that it ran across land where the eighth defendant (AP) held the benefit of a restrictive covenant. The trust brought an action seeking a declaration that none of the defendants would be entitled to an injunction should the proposal be implemented. The declaration would be granted because even if the defendants had a cause of action, they would have no right to an injunction because the realignment was to make a dangerous road junction safe i.e. there would be substantial public good accruing from the realignment. Profits a Prendre Nature The rules relating to profits are different from those governing easements: Taking profits means severing and appropriating something from the land There is no requirement to have a dominant tenement Examples can include: Common of Pasture (cattle) Common of Turbary (turf or peat) Profit of Piscary (taking fish from inland waters) Profit of Estovers (taking wood for fuel or repairing furniture, fences or equipment) Acquisition Mostly similar to acquisition of easements, i.e. by: express grant or reservation implied grant prescription registration of profits in common under Commons Registration Act 1969 Extinguishment This occurs if: The profit holder acquires ownership of the servient land The profit holder grants a release The land is developed so as to render the profit useless The land is enclosed A profit over common land is not registered under CRA 1969 Passing of benefit and burden of easements & profits Benefit Both easements and profits are proprietary rights in land, more than personal rights, and so are capable of passing to successors in title, and are automatically included in s.62 LPA 1925. Burden Questions of priority arise concerning the burden, which are now subject to provisions of LRA 2002. Party Walls The Party Wall Act 1986 enables work to be done to party (shared) walls and structures, and is also a means of settling disputes: s.1 provides the mechanism for an owner who wants to build a party wall or structure on the boundary of adjoining land:

 a month's notice must be served describing the work to be done if an agreement is reached, he can build straddling the boundary with shared cost in proportion to their respective use. If no agreement is reached, he can only build on his own land and at his own expense. s.2 provides for repair of existing party walls and gives a number of rights e.g. to: underpin strengthen demolish and rebuild Counter-notice may be served if recipient objects. s.10 provides for mutual appointment of a surveyor to resolve and disputes Appeals can be made to the County Court. Law Reform Law Commission Consultation Paper On 28th Mar 2008, the Law Commission published a consultation paper to reform rights over neighbouring land. The main changes were: The simplification of the law relating to the creation of easements and profits, sweeping away the many and complex ways in which these can arise without being created expressly. The streamlining of a number of land registration procedures that will simplify the creation and extinguishment of interests in land including easements. The extension of the jurisdiction of the Lands Chamber of the Upper Tribunal that will enable it to make orders modifying or discharging land obligations, and easements and profits created post-reform. Lang Registry According to the Land Registry, at least 65% of freehold titles are subject to one or more easements, and 69% are subject to one or more covenants. According to Stuart Bridge, they cause difficulties due to obscure terminology and dry legal complexity.