Proprietary rights in land - Methods for creation of easemen...

Learning Outcomes

This article outlines easements in English land law, focusing on their nature, methods of creation, and legal consequences, including:

• The essential characteristics of an easement (dominant and servient tenement, accommodation, separation of ownership, and subject matter of grant) and common reasons why claimed rights fail, such as uncertainty, excessive scope, ouster of the servient owner, or requiring positive expenditure
• The principal methods for creating easements: express grant and reservation by deed, the main implied grant and reservation doctrines (necessity, common intention, Wheeldon v Burrows, and section 62 LPA 1925), and prescription at common law, by lost modern grant, and under the Prescription Act 1832
• How to distinguish legal from equitable easements, including required formalities, the need for a term equivalent to a legal estate, and the impact of registration or lack of registration on enforceability
• Priority and binding effect of easements on successors in title in registered and unregistered land, with emphasis on notices, land charges, overriding interests, and the consequences where protection steps are omitted
• Application of these rules to common SQE1 fact patterns, such as sales of part, lease grants and renewals, landlocked access routes, long-use scenarios, and recreational or parking rights, using a structured, issue-led approach

SQE1 Syllabus

For SQE1, you are required to understand the essential characteristics, methods of creation, and legal versus equitable status of easements in English land law, with a focus on the following syllabus points:

• 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).

The fourth characteristic is often where claimed rights fail. The right must be capable of reasonably exact definition (no general right to a view; no undefined airflow), and it cannot impose a positive obligation on the servient owner to spend money or do works. As a rule, the servient owner must merely allow the dominant owner to perform the activity on the servient land. A limited exception exists in rural fencing where a stock‑proof boundary obligation has been treated as akin to an easement in particular agricultural contexts.

The right must not amount to exclusive possession or effectively deprive the servient owner of control. This “ouster” or exclusivity concern is judged by degree, both spatially and temporally. Storage and parking claims illustrate the line between use and possession: storing so extensively that a cellar is effectively filled, or parking that leaves the servient owner with no reasonable use of their land, will not be an easement. By contrast, limited storage or non‑exclusive parking on sufficiently large servient land may be valid, provided the servient owner retains real possession and control. While there has been judicial debate on the test, the key practical point remains: the more exclusive and continuous the occupation of the servient land, the less likely the right is to be an easement.

Recreational rights are not automatically excluded. The Supreme Court has recognised that certain recreational facilities (e.g. a swimming pool, tennis courts, golf course) can accommodate modern residential or timeshare landholdings and may be easements, provided all essential characteristics are met and the right does not require the servient owner to fund or carry out works.

There is no general “new” category of negative easements. English law remains cautious and limits negative easements to narrow categories such as light, support, and air in defined channels. A claimed right to television reception or to weather protection would be refused, as such rights would unduly restrain development or be too vague.

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).

Key Term: subject matter of grant
A requirement that the right be clearly defined, not impose positive expenditure on the servient owner, and not amount to exclusive possession of the servient land.

Key Term: ouster principle
The idea that a claimed easement must not confer rights so extensive that they amount to exclusive possession or joint possession of the servient 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; Law of Property (Miscellaneous Provisions) Act 1989, s 1 for deed execution).
• The right must be for a duration equivalent to a legal estate to be legal (LPA 1925, s 1(2)(a)).
• For registered land, an expressly created legal easement must be substantively registered to take effect at law (LRA 2002, s 27(2)(d)). If not registered, the right will take effect only in equity and should be protected by a notice on the charges register (LRA 2002, s 32).
• In unregistered land, a legal easement created by deed binds the world; an equitable easement created by contract must be protected by a Class D(iii) land charge to bind a purchaser for value (LCA 1972, s 2(5); s 4(6)).

Reservations are construed strictly: a seller must reserve the easement in clear terms, or risk “derogation from grant” by leaving the land sold incapable of the enjoyment expected under the transfer. Precise drafting and registration prevent priority issues on later transactions.

Key Term: derogation from grant
A principle preventing a grantor from acting inconsistently with the grant so as to render the thing granted substantially worthless.

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). The threshold is strict: mere convenience or reasonableness is not enough, and a known alternative—even if longer or steeper—will defeat necessity. The use implied by necessity is limited to the purposes for which the land was used when the necessity arose (at the date of transfer).

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. A clearly defined intended use (e.g. operating a restaurant free from noxious fumes, installing services for residential development) supports implication, whether as grant or (exceptionally) reservation.

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.

Reservations by common intention are treated more cautiously than grants; the facts must strongly support that reserved use was mutually contemplated (e.g. a shared back path evident on plans and used by all houses on the terrace).

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. These implied rights operate only in favour of the purchaser (as grants, not reservations).

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.

Key Term: quasi‑easement
A right exercised by an owner over one part of their land for the benefit of another part while both are in common ownership; capable of becoming an easement on sale of part if conditions are met.

“Continuous and apparent” denotes habitual and visible features discoverable on careful inspection (e.g. worn tracks, doorways, drainage channels). “Necessary for reasonable enjoyment” is less exacting than strict necessity: a safer route avoiding a hazardous junction, or a necessary internal access, can suffice even if another route exists. Crucially, the quasi-easement must be in use at the time of the grant.

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. Its operation depends on there being a “conveyance” (a written instrument transferring or creating a legal estate), and can uplift a licence to a full legal easement on renewal or sale, unless excluded.

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.

Conditions for section 62 to operate include:

• A conveyance within s 205(1)(ii) LPA 1925 (e.g. a transfer, or even a written short lease)
• Typically some diversity of occupation at the time of the conveyance, unless the right is continuous and apparent—where case law has allowed s 62 to operate even without diversity
• An existing privilege at the date of conveyance (s 62 is not concerned with future rights)
• The claimed right must be capable of being an easement (meeting Ellenborough Park), although necessity for reasonable enjoyment is not required

Section 62 can be excluded expressly in the deed. A radical change in the use of the dominant or servient land following conveyance can prevent s 62 from creating unintended easements.

Prescription

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

• Common law prescription: Use since time immemorial (1189), where continuous use for 20+ years raises a rebuttable presumption of such ancient use.
• Lost modern grant: Presumes a valid grant made and lost if use has continued for at least 20 years “as of right”—a pragmatic fiction used where other routes fail.
• Prescription Act 1832: Statutory periods (usually 20 years) of continuous use as of right immediately preceding litigation, or 40 years for an absolute and indefeasible right (subject to limited exceptions).

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

Key Term: as of right (nec vi, nec clam, nec precario)
The prescriptive user must be without force, without secrecy, and without permission.

Key features of prescriptive claims:

• Use must be “as of right” and sufficiently open (night‑only discharges concealed from reasonable inspection are secret use; removing obstructions or ignoring protests is force; paying for use indicates permission)
• “Continuous” use can be intermittent if consistent with the nature of the right (e.g. occasional access or deliveries); extended interruptions of a year or more break the period under the Act
• The Act requires the 20‑ or 40‑year period to run immediately before “some suit or action”—time is assessed backwards from the commencement of proceedings
• Rights of light are treated specially under s 3 PA 1832: 20 years’ uninterrupted light through a defined aperture can mature into an absolute right, subject to statutory interruptions under the Rights of Light Act 1959

In registered land, an easement acquired by implication or prescription can override a registered disposition (LRA 2002, Sch 3, para 3), provided it is obvious on inspection, within recent exercise, or known to the purchaser.

Legal vs. Equitable Easements

A legal easement must be:

• Created by deed (unless implied or acquired by prescription)
• For a term equivalent to a legal estate (freehold or leasehold)
• Registered (if required) to take effect at law 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 appropriate protection.

In registered land:

• Express legal easements must be registered to be legal (LRA 2002, s 27(2)(d)); unregistered express grants take effect only in equity and should be protected by notice (s 32)
• Implied or prescriptive legal easements may override a registered disposition if the statutory conditions are met (Sch 3, para 3)
• Equitable easements are not overriding and should be protected by notice to bind purchasers (ss 29, 32)

In unregistered land:

• Legal easements bind the world
• Equitable easements created on or after 1926 must be protected by a Class D(iii) land charge to bind a purchaser for money or money’s worth (LCA 1972, s 2(5); s 4(6))

Key Term: notice (registered land)
An entry on the charges register protecting a third‑party interest that does not restrict disposition but preserves priority (LRA 2002, s 32).

Key Term: overriding interest (registered land)
An interest that binds a purchaser despite not appearing on the register, within listed categories (e.g. certain legal easements acquired by implication or prescription).

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.

Worked Example 1.4

Scenario:
G is granted a one‑year written lease of a shop by H. During the first lease, H informally allows G to use part of H’s side yard for deliveries. The lease expires and a new written one‑year lease is granted to G, with no mention of the yard. G continues using the yard, and H later seeks to exclude G.

Answer:
Section 62 LPA 1925 can operate on the grant of the second lease (a “conveyance”) to convert the prior permission to a legal easement, provided the delivery use was a recognised, continuous and apparent privilege at the date of the second lease and the right is capable of being an easement. Unless excluded, G may now have a legal easement over H’s yard.

Worked Example 1.5

Scenario:
J buys registered land with a clause in the contract granting a right to use a metal staircase attached to the neighbour’s wall. The right was not registered by notice. J claims the equitable easement is protected as an overriding interest because J is in actual occupation.

Answer:
In registered land, equitable easements are not overriding interests merely because the dominant owner is in actual occupation; they must be protected by notice to bind purchasers. Without a notice, the equitable easement will not bind a purchaser for value.

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 (registered land) or registration as a land charge (unregistered land). Consider whether implied or prescriptive legal easements might override in registered land.

Revision Tip

For SQE1, memorise the four essential characteristics of an easement and the main methods of creation. Build short checklists for each: for Wheeldon (continuous and apparent; necessary for reasonable enjoyment; in use at the time of grant), for s 62 (conveyance; existing privilege; continuous/apparent where needed), and for prescription (20+ years; nec vi, nec clam, nec precario; continuity; immediate period before action). Visualise dominant/servient tenements and where inspection would reveal continuous/apparent use.

Summary

Table: Main Methods for Creation of Easements

In registered land, remember: express legal easements must be registered; implied/prescriptive legal easements can override if within Sch 3; equitable easements need a notice. In unregistered land, legal easements bind the world; equitable easements require a D(iii) land charge to bind purchasers.

Key Point Checklist

This article has covered the following key knowledge points:

• The four essential characteristics of an easement (Re Ellenborough Park), including precision of the right, no servient expenditure, and no exclusive possession.
• 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 (common law, lost modern grant, Prescription Act 1832).
• The distinction between legal and equitable easements, and the formalities required for each, including deed execution and registration requirements.
• Priority rules: express legal easements must be registered in registered land; implied and prescriptive legal easements may override; equitable easements need a notice (registered land) or a land charge (unregistered land) to bind purchasers.
• Practical limits on the scope of easements: no general rights to view, weather protection, or television reception; recreational facilities may be easements where they accommodate the dominant land and do not require servient works.
• 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, in both registered and unregistered land.

Key Terms and Concepts

• easement
• dominant tenement
• servient tenement
• subject matter of grant
• ouster principle
• express grant
• express reservation
• derogation from grant
• easement of necessity
• easement by common intention
• rule in Wheeldon v Burrows
• quasi‑easement
• section 62 LPA 1925
• prescription
• as of right (nec vi, nec clam, nec precario)
• legal easement
• equitable easement
• notice (registered land)
• overriding interest (registered land)