Proprietary rights in land - Methods for creation of easements

Learning Outcomes

After studying this article, you will be able to identify and explain the main legal methods for creating easements, including express grant, implied grant (necessity, common intention, Wheeldon v Burrows, and section 62 LPA 1925), and prescription. You will understand the distinction between legal and equitable easements, the requirements for each, and how these principles apply to SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the creation of easements from both a practical and doctrinal standpoint. Focus your revision on:

• the essential characteristics of an easement (dominant/servient tenement, accommodation, separation of ownership, subject matter of grant)
• the main legal methods for creation of easements: express grant/reservation, implied grant/reservation (necessity, common intention, Wheeldon v Burrows, section 62 LPA 1925), and prescription
• the distinction between legal and equitable easements, including the formalities required for each
• how to determine whether an easement is binding on successors in title in both registered and unregistered land

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which four essential characteristics must be present for a right to qualify as an easement?
2. Name two ways in which an easement may be implied into a transfer of land.
3. What is the minimum period of use required to acquire an easement by prescription under the Prescription Act 1832?
4. What is the main difference between a legal and an equitable easement in terms of creation and enforceability?

Introduction

Easements are a key form of proprietary right in land law, granting one landowner limited rights over another’s land. For SQE1, you must be able to identify the legal requirements for a right to be an easement, and explain the main methods by which easements are created. This article covers the core principles, the main legal methods of creation, and the distinction between legal and equitable easements.

Essential Characteristics of an Easement

Not every right over another’s land is an easement. The courts have set out four essential characteristics, most authoritatively in Re Ellenborough Park:

1. There must be a dominant and a servient tenement (two separate parcels of land).
2. The easement must accommodate (benefit) the dominant tenement.
3. The dominant and servient tenements must be owned and occupied by different persons.
4. The right must be capable of forming the subject matter of a grant (i.e. be sufficiently certain, not too wide, and not amount to joint possession).

Key Term: easement
A proprietary right that allows one landowner to use or restrict the use of another’s land for a specific purpose.

Key Term: dominant tenement
The land that benefits from the easement.

Key Term: servient tenement
The land over which the easement is exercised (the burdened land).

Methods for Creation of Easements

Easements can be created by several legal methods. For SQE1, you must be able to explain and apply each method.

Express Grant or Reservation

An easement may be created expressly by deed. This is the most straightforward method.

• Express grant: The servient owner grants an easement over their land to the dominant owner.
• Express reservation: When selling part of their land, the seller reserves an easement for the benefit of the land they retain.

Key Term: express grant
The deliberate creation of an easement by deed, conferring a right over land to another.

Key Term: express reservation
The deliberate retention of a right over land sold, for the benefit of land retained, by deed.

Formalities:

• Must be by deed (Law of Property Act 1925, s 52).
• For registered land, must be substantively registered to be legal (LRA 2002, s 27(2)(d)).
• If not properly created or registered, may only be equitable.

Implied Grant or Reservation

Easements can arise by implication, even if not mentioned in the deed. The main types are:

1. Necessity

An easement will be implied if, without it, the land cannot be used at all (e.g. landlocked access).

Key Term: easement of necessity
An easement implied by law where land cannot be used at all without the right claimed.

2. Common Intention

An easement may be implied if both parties intended the land to be used in a particular way, and the easement is necessary to achieve that intention.

Key Term: easement by common intention
An easement implied where both parties intended the land to be used in a definite way that requires the easement.

3. The Rule in Wheeldon v Burrows

When a landowner sells part of their land, the buyer may acquire implied easements for all quasi-easements that are continuous and apparent, necessary for reasonable enjoyment, and used by the seller at the time of sale.

Key Term: rule in Wheeldon v Burrows
On sale of part, the buyer may acquire implied easements for rights previously used by the seller that are continuous, apparent, and necessary for reasonable enjoyment.

4. Section 62 Law of Property Act 1925

Section 62 can convert certain pre-existing permissions or privileges into legal easements on conveyance, even if not expressly mentioned.

Key Term: section 62 LPA 1925
A statutory provision that can convert certain pre-existing rights or permissions into legal easements on conveyance of land.

Prescription

Easements can be acquired by long use, known as prescription. The main doctrines are:

• Common law prescription: Use since time immemorial (1189).
• Lost modern grant: Presumes a grant was made and lost if use has continued for at least 20 years.
• Prescription Act 1832: Statutory periods (usually 20 years) of continuous use.

Key Term: prescription
Acquisition of an easement by long, continuous use as of right, without force, secrecy, or permission.

Legal vs. Equitable Easements

A legal easement must be:

• Created by deed (unless implied or by prescription).
• For a term equivalent to a legal estate (freehold or leasehold).
• Registered (if required) to be legal in registered land.

Key Term: legal easement
An easement created with all required formalities, binding on successors in title.

Key Term: equitable easement
An easement recognized in equity due to a valid contract or failed formality, but not binding on a purchaser without notice.

Worked Example 1.1

Scenario:
A sells part of their land to B. The only access to B’s land is over a track on A’s retained land. The sale deed is silent on access rights. B cannot reach the public road without using the track.

Answer:
An easement of necessity will be implied in favour of B, as the land would otherwise be unusable. B has a right of way over A’s land.

Worked Example 1.2

Scenario:
C has used a path across D’s land to reach the main road for 25 years, openly and without permission. D now objects.

Answer:
C may have acquired a prescriptive easement (right of way) by long use under the Prescription Act 1832 or the doctrine of lost modern grant.

Worked Example 1.3

Scenario:
E buys a house from F. Before the sale, F had always used a shed on the retained land for storage. The sale deed does not mention storage rights. E continues to use the shed.

Answer:
If the use was continuous and apparent, and necessary for reasonable enjoyment, E may have an implied easement under the rule in Wheeldon v Burrows.

Exam Warning

In exam questions, always identify the method of creation and check whether the correct formalities have been satisfied. If a legal easement is not properly created or registered, it may only be equitable and may not bind a purchaser without notice.

Revision Tip

For SQE1, memorise the four essential characteristics of an easement and the main methods of creation. Use diagrams to visualise dominant and servient tenements.

Summary

Table: Main Methods for Creation of Easements

Key Point Checklist

This article has covered the following key knowledge points:

• The four essential characteristics of an easement (Re Ellenborough Park).
• The main legal methods for creation of easements: express grant/reservation, implied grant/reservation (necessity, common intention, Wheeldon v Burrows, section 62 LPA 1925), and prescription.
• The distinction between legal and equitable easements, and the formalities required for each.
• The importance of registration for legal easements in registered land.
• The need to check whether an easement is binding on successors in title, depending on its legal or equitable status and the method of creation.

Key Terms and Concepts

• easement
• dominant tenement
• servient tenement
• express grant
• express reservation
• easement of necessity
• easement by common intention
• rule in Wheeldon v Burrows
• section 62 LPA 1925
• prescription
• legal easement
• equitable easement