An easement provides some form of right which is exercised over the land belonging to another. An easement is a category of third-party interests in land. It is a right over someone else’s land, however, it is a very limited right to limited use of another person’s land
It is important to note that only those rights which are recognised by the court are able to be classified as easements
Right of way, right to lay and maintain drains, sewers and pipes, right to storage, right to support a connecting wall, right to sufficient light to enable reasonable use of building are some common example of easements/rights over someone else’s land for the benefit of another land
Right of way
The right of way is a right to walk across or over someone else’s land. The person who benefits from the right of way can go onto the land and create it. The person who has granted the right is under no obligation to construct it. However, there is no obligation on either party to maintain the right of way.
Conditions for Easement
- There must be dominant land and servient land, the dominant land is the one which is benefited from the easement and the servient land is the one which has to bear the burden of the right or brunt of that right
Plot 1- Albert Plot 2- Ben
Albert granted Ben a right of way over his land to a pub. The benefit of this right is to Ben’s land which is Plot 2 so it will be a dominant land and as Albert’s land is the one which is burdened it will be a servient land
- The dominant land and servient land must not be owned by the same person. If Albert as per our example is the owner of both plots he can do whatever he wants to so and does not have to create any right and also one cannot create an easement over his/her own land.
- The easement right must benefit the dominant land and it must not be a right which just benefits the owner of the dominant land in his/her personal capacity. A right to lay drains across someone’s land benefits the land a right to play cricket with the owner of the land does not create an easement as it is a personal right and does not benefit the land. Where the land is sold and the new occupier enjoys the same rights over the other’s land it will be an easement
- The right which is granted must be capable of forming the subject matter of a grant. The right must be capable of being granted expressly in a
- There must be a capable grantor (person who is over 18 years of age and of sound mind) and a capable grantee
Grantor and Grantee
Grantor is the person who grants the right in our example above, Albert will be a grantor and grantee is a person to whom the right is granted or to whom the permission is provided, Ben will be a grantee
- The right must be sufficiently definite. The grantee must be able to define the right he/she wishes to claim an easement. For example, one must be able to identify and define where a footpath goes or where a drain is placed
- The right claimed must be recognised by the courts
- The right claimed must not totally exclude the owner of the servient If a right excludes the owner of servient land then it will give rise to an exclusive possession which is an interest in the land and not an easement. In our example, if Albert is unable to use the right of way he granted to Ben then it is not an easement.
Creation of an Easement
The easement can be granted by
- Express grant in a deed which will be a legal easement
- Express grant in a written contract which will be an equitable easement
- Implied grant of necessity
- Implied grant of mutual intention
- Implied grant under the rules in Wheeldon v Burrows
- Implied grant under section 62 of Law of Property Act 1925
Reservation of an easement
Reservation of an easement is done by
- Express reservation by deed
- Implied reservation by deed
- Implied reservation by intention
Creation by Express grant in a deed
Easements are interests in a land and they are binding on the current and future land owner. A deed is required to create a legal interest in the land
Express Grant in a deed
Express grant is an agreement made knowingly and deliberately between two people in a deed. An easement can be created in a deed and the process of creating a deed is provided below
Requirements for a valid Deed
- It must be in writing
- The deed must be clear on the face that it is intended to be a deed
- It must be signed by a person making the deed in the presence of a witness who attests his signature (Attestation)
- The witness must sign and date the deed
- It must also be delivered (handed over) as deed as well
Express Grant in a contract
An easement can also be created by a written agreement, the written requirements are following
- The agreement must be in writing
- Must be signed by or on behalf of both parties to the contract
- The agreement must contain all the express terms of the agreement.
It is important to note that the easement created through a contract has different weight in law as compared to an easement created in a deed. It is advisable to create an easement through deed
Implied grant of necessity
Such easements are implied by the court in circumstances where the land becomes locked and there is no way that access to land can be obtained other than through/by an easement. Necessity means an absolute necessity.
Implied grant of mutual intention
This will occur when the court gives effect to what the court thinks the intention of the parties was when the land was sold. It is implied by the court and implied into the conveyance, by deed of sale. Under mutual intention, the court will give effect to terms that they think the parties would have put in had they thought about it bit more.
Implied Easement under the rules of Wheeldon v Burrows
This situation often occurs where some piece of land is sold by a landowner to another party and retained the remaining part. The previous owner was also in use of some rights which are now denied to the new owner. The conditions the new landowner has to prove against the old landowner and a likely neighbour are the following
- The right claimed must be continuous and apparent, and
- Must be necessary to the reasonable enjoyment of the land sold, and
- The right is in use both previously and at the time of the sale for the benefit of the part of the land
Courts will grant an easement. By continuous we mean that the right must be used on a regular basis, by apparent we mean that the right claimed must be visible and the right needs to be necessary for the reasonable enjoyment of the land sold
Implied Grant under Section 62, Law of Property Act
- Under Section 62, all rights, privileges and advantages of a land pass with a conveyance to the new landowner upon a sale of land
- Section 62 provides and lists the benefits that pass in a conveyance of land without being explicitly included.
- Section 62 transfers the existing benefits of the easement to the new owner unless they are expressly excluded in the conveyance
When a right is used for a sufficiently long-time period it becomes legal and it belongs to the user of such right.
- The right must have been used for 20 years
- The right must be used without force
- The right must be exercised without secrecy
- Finally, the right must be used without a permission
Reservation of an easement occurs when a landowner sells part of his land and retains a right over the land he has sold
Express reservation is created by a landowner when he sells the land and expressly reserves a right to himself over the land in the deed of sale, a common example is a right of way.
It is a legal right and will be binding on subsequent land owners of the plot sold
Implied Reservation through Necessity and intention
These reservations are implied by the court and these are granted by the reason of necessity or intention. Where a piece of land is completely surrounded by the land of the other party, an easement of necessity would be implied by a court in the favour of either the seller or the buyer of the land.
While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.