It is suggested that ‘the vendor and purchaser of land should make express provisions for any easements that they want’ and that ‘the law should rarely imply easements in their favour’. In order to evaluate this assertion it is first necessary to establish the characteristics of an easement, thus facilitating a discussion as to the various means by which easements may be acquired with particular reference to their acquisition by implied grant or reservation.
An easement is a right which makes the use of a person’s land more convenient or which accommodates or benefits it in some way. As it is a right that is imposed over someone else’s land, it follows that it imposes a burden upon that land. Easements are also proprietary interests in land, meaning that the benefit and burden may pass to subsequent owners of the two pieces of land involved. The four characteristics of an easement were defined by the Court of Appeal in Re Ellenborough Park. Firstly, there must be a dominant and a servient tenement (the dominant tenement carries the benefit of the easement and the servient tenement carries the burden); secondly, the easement must accommodate, or benefit, the dominant tenement; thirdly, the dominant and servient tenement must not be both owned and occupied by the same person; finally, the right must be capable of forming the subject matter of a grant – that is, the person who grants the right must have the power to do so, the grantee must be capable of receiving it and the nature of the right claimed must be sufficiently clear and the owner of the servient tenement must not be deprived of too many of their rights.
Having described the essential characteristics of an easement as involving the imposition of rights over someone else’s land, it follows that the most obvious way in which such an easement can be created is where the owners of two neighbouring pieces of land agree that one of them is to have an easement over the land of the other. This is the manner in which easements are acquired in the vast majority of cases. Indeed, most express grants of easements occur when a person sells part of the land that they own; the vendor of the parcel of land and its purchaser making express provisions for the easements that they want and specifically agreeing the rights that are to subsist over the servient tenement.
In terms of formalities, section 1(2) of the Law of Property Act 1925 states that an easement is a right ‘that is capable of subsisting or of being conveyed or created at law’, that is, capable of being a legal interest, and can only be legal if ‘for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute’. Moreover, section 52 of the Law of Property Act 1925 provides that a conveyance of land or of an interest in land is void for the purpose of conveying or creating a legal estate unless it is made by deed. Therefore, legal easements must be granted by deed. Easements may also be expressly reserved; where a vendor is selling part of their land, they may wish to reserve or keep back certain rights in their favour. Again, this involves a clear and express agreement between the vendor and the purchaser as to the rights that are to be enjoyed over the servient tenement. It is also necessary to consider the protection of easements. When land is conveyed under the unregistered system, the legal estate passes immediately on completion of the transaction; if conveyance is by deed and contains the grant of an easement, the easement takes effect immediately as a legal easement and binds the whole world irrespective of notice. The owner of the dominant tenement may enforce the right against the owner of the servient tenement. However, where title to the land is registered, section 27(1) of the Land Registration Act 2002 provides that the disposition of a registered estate that is required to be completed by registration does not operate at law until the registration requirements are met; this includes the express grant or reservation of an easement since it falls within section 1(2)(a) of the Law of Property Act 1925. Therefore, express grants of easements must be registered, and once registered will bind successive owners of the servient land. Until registration, the easement is merely an equitable easement. Registration will take place in the Property Register of the title to the dominant tenement and the Charges Register of the title to the servient tenement.
In the majority of cases, therefore, ‘the vendor and purchaser of land should make express provisions for any easements that they want’: this enables a clear agreement to be reached between the parties as to the precise nature of the easements granted or reserved, and enables both parties to be certain as to their position. In an ideal world, all easements would be expressly granted or reserved; by examination of the deed of conveyance or entries on the register of title (depending on whether title to the land in question is registered or unregistered) any prospective purchaser should be able to establish what easements benefit and burden a property. However, there are certain circumstances in which the law will imply an easement.
The two general rules relating to the acquisition of easements by implied grant or reservation were identified by Thesiger LJ in Wheeldon v. Burrows. The first rule relates to the rights which, in the absence of any express provision, will be acquired by the purchaser over the vendor’s retained land. It states that the purchaser of land acquires all those continuous and apparent easements, or easements that are necessary to the reasonable enjoyment of the property sold, and which the vendor was using immediately prior to the sale. The second rule applies where a landowner sells part of his land and fails expressly to reserve any rights over the land that he has sold; in this case the vendor is not normally able to claim an implied easement. Thesiger LJ stated that these rules were based on the maxim that ‘a grantor shall not derogate from his grant’; in other words ‘a grantor having given a thing with one hand is not to take away the means of enjoying it with the other’. The requirement for a ‘continuous and apparent’ easement has been held to be some feature to be present on the servient tenement which would be apparent on an inspection and which has some degree of permanence, such as drains (in the case of a implied drainage easement) or a path. There are some exceptions to the second rule in Wheeldon v. Burrows. The first of these are easements of necessity; for example, where a purchaser buys land to which there is no access except by crossing the land of the vendor, and there is no express grant of a right of access, then an easement of necessity will be implied to prevent the purchaser from becoming landlocked. However, the purchaser will only be entitled to what is necessary and not that which is merely convenient; the right will be limited to that which was necessary at the time of the grant and will not give the purchaser a right for all purposes. There may also be other exceptions to the rule that a person may not derogate from his grant: for instance in Pwllbach Colliery Co. Ltd v. Woodman, Lord Parker considered that an easement will also be implied if it is necessary to give effect to the common intention of the parties. However, it is necessary to show that the land was meant to be used in a particular way and that the parties must have intended there be a right granted in order that it may be so used.
Having considered the circumstances in which easements may be expressly granted or reserved and may be acquired by implication, it is clear that, as suggested, the vendor and purchaser of land should make express provisions for any easements that they want. This would provide certainty to all persons interested in a particular piece of land as to the nature of the easements with which it is burdened or benefited. However, it is also clear that, since not all easements are the subject matter of an express grant, the law must intervene to imply easements under certain circumstances. This is done to prevent unfairness to purchasers who could otherwise, for example, find themselves landlocked or without drainage facilities. It is also true however, that the law will ‘rarely imply easements’; seeking to limit this to those in current usage that are necessary for reasonable enjoyment, limiting easements of necessity to exclude rights which would be merely convenient and only exceptionally implying other easements to give effect to the common intention of the parties. Therefore, the statement provided represents a very good encapsulation of the current law.