PROPERTY LAW

LECTURE: WEEK 24

READING MATERIAL:
SUBJECT GUIDE: CHAPTER 8
MARTIN DIXON: CHAPTER 7
 EASEMENTS

The right to use another’s property in a limited way may comprise a mere
personal right such as a licence, or it may be a proprietary right, such as a lease
or an easement. In order to ascertain when such a right can be an easement, we
need to understand the key features or characteristics of an easement and the
ways in which they may be created over property.
Easements are incorporeal hereditaments. They comprise certain limited rights
that one landowner may enjoy over the land of a neighbor. Common examples
are a right of way on another’s land. For example, A, the owner of House A,
uses House B’s driveway in order to access the main highway quicker. House B
belongs to B. A has what we call an easement over B’s land.
 HOUSE A HOUSE B

A can use B’s driveway

to access the highway
DOMINANT SERVIENT
TENEMENT TENEMENT
(benefitted land) (burdened land)
An easement confers a benefit upon one piece of land (called the dominant
tenement, House A in the example above) and a corresponding burden upon
another piece of land (called the servient tenement, House B in the example
above).
An easement is distinct from a licence in that it is a proprietary right. As a
proprietary interest in land, it can pass with the land to new owners (subject to
conveyancing and registration requirements). This means that purchasers of
land may find that they are bound by such pre-existing third-party rights. There
is a difficult balance of rights involved in the recognition of easements. Because
they are proprietary rights capable of passing with the land which they affect and
disrupt the servient landowner’s use and enjoyment of their land, the law is
careful not to expand the category of easements too readily. Thus, the law is
careful that the definition of easements must not become too vague or
uncertain. But on the other hand, easements may be necessary for the use and
enjoyment of the dominant land, or may be commercially valuable, and so the
law must develop with the passing of time; therefore, the category of easements
must not be too closed.
In other words, if too many rights, or rights that are vague and uncertain,
amount to easements, the owner of the burdened land might find the use and
enjoyment of his land severely disrupted. Conversely, if the law recognizes too
few easements, or is stagnant in the face of economic and social change, it would
be impossible for the owners of the benefitted lands to safeguard the value and
amenity of their property. A balance has to be struck. The law on easements
must accommodate the needs of the benefitted land while at the same time
ensuring that the burdened land does not become overburdened and
inalienable.
For this reason, there are established criteria or characteristics set out by the
law for determining if an alleged right is capable of amounting to an easement.
The first four of the criteria or characteristics necessary for the existence of an
easement are found in the case of RE ELLENBOUROUGH PARK. The
remaining criteria have developed overtime as essential to the finding of an
easement.
 CHARACTERISTICS OF AN EASEMENT

In RE ELLENBOROUGH PARK, people who owned houses around a park

were granted the right to use it as a ‘leisure garden’, but during the Second
World War it was taken over by the government. If the house owners had been
deprived of a legal right, then they were entitled to compensation under a
statute. On the facts, the only possible legal right was an easement. Eventually,
the house owners succeeded in convincing the Court of Appeal that the right to
use the park was an easement. Four factors were held to be relevant in
determining whether an easement exists.
1) THERE MUST BE A DOMINANT AND SERVIENT TENEMENT:
For an easement to exist, there must be a dominant and a servient tenement.
This criterion lies at the heart of the nature of the easement. This means there
must be land that is benefitted (the dominant tenement) and land that is
burdened (the servient tenement). In technical terms, an easement cannot exist
in gross (i.e., detached from the ownership of land).
The two pieces of land must be readily identifiable. The creation of easements
for land not yet identified is not possible – they cannot exist independently of
land (LONDON AND BLENHEIM ESTATES LTD V LADBROKE RETAIL
PARKS LTD). However, the tenements need not be expressly mentioned, it
would be sufficient as long as they are ascertainable at the time of creation of
the easement.
2) THE DOMINANT AND SERVIENT LAND MUST HAVE DIFFERENT
OWNERS OR AT LEAST DIFFERENT OCCUPIERS:
An easement is essentially a right in another person’s land. For that reason, the
dominant and servient tenements must be either owned or occupied by
different people (ROE V SIDDONS). Thus, an easement can exist in two
scenarios.
 SCENARIO 1:
A & B OWN THEIR OWN SEPARATE TENEMENTS

HOUSE A HOUSE B

A can use B’s garden

DOMINANT SERVIENT
TENEMENT TENEMENT
 SCENARIO 2:
B OWNS BOTH HOUSES

HOUSE 1 HOUSE 2
(LEASED TO A) (B OCCUPIES)

A can use B’s garden

DOMINANT SERVIENT
TENEMENT TENEMENT
If the dominant and servient tenements come into the common ownership or
occupation of the same person, the easement will be extinguished as a person
cannot have an easement against themselves.
3) THE RIGHT MUST ACCOMMODATE THE DOMINANT TENEMENT:

This entails two distinct requirements:

(i) First, the right must not be a merely personal advantage on the present
occupier of the dominant tenement and
(ii) Second, the dominant and the servient tenement must be sufficiently
proximate.
(i) The right must not be a merely personal advantage on the present occupier
of the dominant tenement: The right must increase the value or saleability of
the dominant land and must endure as an aspect of the benefitted estate. It
must increase the normal enjoyment of the dominant land in question. In Re
Ellenborough itself, the courts were satisfied that a domestic property is
always improved in character by the availability of a garden and therefore
granted the right to use the garden as an easement.
Whether the use benefits the dominant tenement will always be a value
judgment and a question of fact dependent on the nature of the property, the
locality where in it lies and the purported use of the property. In HILL V
TUPPER, the owner of a canal granted the claimant the right to put pleasure
boats on the canal in return for money. This was seen as a blatantly personal
advantage for the claimant’s business, unconnected with the claimant’s use of
his property. The court held that the right to park the pleasure boats was a
benefit given to the claimant regardless of whether he owned land in that area
or not. The right was meant to attach to a person (the claimant who was the
present owner of the land) rather than to the land he owned. The right was thus
deemed to be a mere licence.
In contrast to Hill, in MOODY V STEGGLES, the owner of the dominant land
successfully argued that he had an easement to hang a sign on his neighbor’s
land (the servient tenement) advertising his pub. The court recognized that
although the signage benefitted a business owned by the claimant, that business
on the dominant tenement had been conducted for such a long period of time
that the land was now linked with and recognized through the business.
Although it benefitted the trade or occupation taking place on the dominant
tenement, that trade had become the intrinsic nature of the land. The courts
recognized that what is essential is a benefit to the dominant tenement the way
it is being used.
IN LONDON AND BLIENHAM ESTATES V LADBROKE RETAIL PARKS,
the dominant land was a supermarket. It was accepted by the courts that a right
to park on neighboring land and to walk across it with shopping trolleys was
capable of existing as an easement for the benefit of the dominant land. The
right benefitted the dominant tenement the way it was being used.
In P & S PLATT V CROUCH, the dominant land was a hotel. The court held
that the right to moor boats at a river bank neighboring the hotel was capable of
subsisting as an easement. This was because the right to moor boats was a
benefit to the hotel and its guests, thus it accommodated the dominant
tenement.
Most recently, in REGENCY VILLAS V DIAMOND RESORTS (2018), the
Supreme Court accepted that the owners of twenty-four properties adjoining a
leisure complex could enjoy easements to use the golf course, tennis and squash
courts and swimming pool on the leisure complex. This clarifies the law that a
right (‘user’) granting recreational benefits on the servient land can
nevertheless be seen as a right (‘user’) accommodating the dominant land. The
twenty-four dominant tenements were time-share properties meant for use as
holiday homes. Thus, the use of recreational facilities on the complex
benefitted the dominant tenements the way they were meant to be used.
It must be remembered that the claimant does not have to show that the
easement was needed by the dominant land, such that it gives the land a distinct
advantage that the land would not otherwise enjoy. It is enough if the alleged
right has a sufficient connection with the land and enhances its utility even
though the dominant owner had other means of achieving the same advantage.
Finally, there may be more than one dominant tenement benefiting from one
servient tenement (like in Re Ellenborough itself).
(ii) The dominant and the servient tenement must be sufficiently proximate
(BAILEY STEPHENS, PUGH V SAVAGE). If the dominant tenement is to be
accommodated or benefitted by the use of the servient tenement, it is but logical
that the servient tenement be close by. The two tenements need not be adjacent
or share a common boundary to satisfy this requirement but in general, the
more physically separate the two properties, the less likely it is that a court
would regard the alleged easement over one as benefitting the other.
4) THE RIGHT MUST BE CAPABLE OF FORMING THE SUBJECT
MATTER OF GRANT:

This also entails two requirements:

(i) First, the easement must be specific and definite and
(ii) Second, there must be a capable grantor and capable grantee.
(i) The easement must be specific and definite: the law is clear that the exact
use on the servient tenement must be sufficiently outlined. The extent of the
right must be clear. The servient owner cannot be expected to bear the burden
of a right which may not have any clear limitations. Moreover, if the right is too
uncertain, it is difficult to determine what could constitute an interruption of
such a right.
• WILLIAM ALDRED’S CASE: a right of “fair view” from the servient land
was considered as being too uncertain and incapable of burdening the
servient tenement as an easement. A “right of light” from the servient
tenement would similarly be considered too vague unless the right pertains
to light from a specific window.

• MOUNSEY V ISMAY: a right to use the servient land for “general

recreational purposes” was considered too vague to constitute an
easement. Although it is now clear from the Supreme Court’s decision in
Regency Villas that a right granted for specified recreational purposes (use
of golf course, squash and tennis courts and swimming pools) will qualify as
an easement.

• ACKROYD V SMITH: a right granted “for all persons and for all
purposes” has also been rejected as being too wide and uncertain.
(ii) There must be a capable grantor and capable grantee: i.e., both the
occupants of the dominant and servient lands must own an estate in land
whether freehold or leasehold. A licencee on the land cannot give or receive an
easement.
In addition to the Re Ellenborough criteria, a right must conform to the
following additional requirements to qualify as an easement:
5) THE RIGHT MUST NOT CONFER EXCLUSIVE POSSESSION OF THE
SERVIENT TENEMENT:
There is a reluctance to recognize as an easement any right that gives the alleged
dominant owner a large measure of occupation or control of the servient land.
If the right were to give the dominant owner exclusive possession of the land,
then the right is likely to amount to an estate in the land. An easement is a right
over the servient tenement for a defined purpose; it is not equivalent to a right
of ownership of that land, and if the dominant owner had desired a greater
degree of use of the servient land, he should have bargained for a lease.
In WRIGHT V MACADAM the court held that whether a right is possessory or
not depends on the size of the property (proportionality). Thus, the purported
right to store coal in a small part of a rather large coal shed was an easement of
storage and not a lease or licence. The court held that the key to deciding
whether an easement is too possessory is to ask whether the servient owner is
left with any reasonable use of his own land. If he is, there is no reason why an
easement should be denied.
In BATCHELOR V MARLOW and CENTRAL MIDLANDS ESTATES V
LEICESTER DYERS, a right to park several cars on the servient land could not
be an easement as the impact on the servient land was too great and was
therefore inconsistent with the limited nature of easements. In COPELAND V
GREENHALF, no easement could exist to store tools on the servient land and
in HANINA V MORLAND, the alleged right to use the flat roof of neighboring
land could not be an easement because it gave exclusive possession. The courts
have emphasized that the servient owner must be left with some reasonable use
of his property. Where the servient owner is ousted from such reasonable use,
an easement cannot exist. This is known as the ouster rule.
In MONCRIEFF V JAMIESON, the question of when an easement ousts or
excludes the servient owners use of his property was recently raised in the
House of Lords on the issue of an alleged easement of parking. LORD SCOTT
suggested a much more radical approach to the problem. In his view, the
relevant question is not whether the servient owner is left with any reasonable
use of his property but rather whether the alleged easement leaves the servient
owner in possession and control of his land. On this view, even very extensive
use of the servient land might amount to an easement provided the servient
owner retained possession and control and, on this basis, Lord Scott doubted
whether Batchelor was decided correctly. However, not all of the law lords went
as far as Lord Scott (Lord Neuberger in particular was not convinced) and
certainly, Batchelor was not overruled. The debate is, therefore, whether the
relevant test (sometimes known as the ouster rule) is ‘does the servient owner
retain reasonable use of the property?’ (as suggested by earlier cases) or ‘does
the servient owner retain possession and control?’(as suggested by Lord Scott).
In VIRDI V CHANNA, the trial judge made it a point to mention that since
Batchelor was not overruled by Moncrieff, he was bound to follow it. The
easement of parking in question would therefore have failed to qualify as such
according to the Batchelor test but the claimant succeeded only due to the
unusual circumstances of the cases i.e., the servient owner had real practical
difficulties in accessing the portion of her land on which the claimant was
asserting a right to park and so the court was of the opinion that no reasonable
enjoyment of the land was being denied to the servient owner. With or without
the easement, that part of her land was unusable to the servient owner so she
was not being ousted by the dominant owners use of that parking space.
Most recently, in R SQUARE PROPERTIES V NISSAN MOTORS, the court
allowed an easement to park over 80 cars on servient land because this did not
completely deprive the servient owner of the reasonable use of his land. Nissan
Motors suggests that the courts are adopting the Batchelor test. In fact, the Law
Commission report No 327 (2011) on easements assumes that Batchelor and
its reasonable use test are good law.
6) THE ‘USE’ MUST BE EXERCISED ‘AS OF RIGHT’:
A right which is exercisable by the permission of the servient owner cannot
qualify as an easement. If the exercise of the right is dependent on the
permission of the servient land owner, the right cannot qualify as an easement.
So, in GREEN V ASHCO HORTICULTURIST, a “purported grant of a right
of way for such periods as the servient owner may permit one to use it” did not
confer any right at all.
7) THE EXERCISE OF THE RIGHT MUST NOT REQUIRE ANY ACTION
ON THE PART OF THE SERVIENT OWNER:
A right which requires positive action by the owner of the servient tenement in
order for the right to be enjoyed is unlikely to be an easement. The alleged
dominant owner cannot require the servient owner to incur any expenditure or
maintain property so that he may continue to enjoy his right LIVERPOOL
CITY COUNCIL V IRWIN. As JUDGE PELLING QC explained in WILLIAM
OLD INTERNATIONAL LTD V ARYA “An easement cannot impose a
positive obligation on a servient owner…The servient owner’s only obligation
is to refrain from doing anything that impedes enjoyment of the easement by
the dominant owner.”
Thus, in REGIS V REDMAN, a purported easement for the supply of hot water
was denied on the grounds that it would impose a positive obligation on the
servient owner. This must now be reconsidered in light of the 2018 Supreme
Court decision in REGENCY VILLAS where the courts recognized the
easement to use a swimming pool which would require maintenance by the
servient owner.
One recognized exception to this rule is the easement of fencing whereby the
servient owner is required to maintain a fence, although perhaps only where it
is necessary (for e.g., to keep animals secure, CROW V WOOD)
8) THE RIGHT MUST BE WITHIN THE GENERAL NATURE OF RIGHTS
CAPABLE OF EXISTING AS EASEMENTS:
Although it is often said that the list of easements is not closed, it seems that
while the category of positive easements is likely to expand with changing social
and economic conditions, the courts will be reluctant to recognise any new
negative easements. Positive easements are those which allow the dominant
owner to do something on the servient land. Negative easements operate
primarily as restrictions on use of the servient land. An example is an easement
of light through a window.
Thus, any use which restricts the servient owner from doing something to his
land will fail to qualify as an easement. For e.g., a right to light will stop the
servient owner from constructing on his premises and therefore will be difficult
to claim. In HUNTER V CANARY WHARF, the House of Lords emphasized
that the category of negative easements is a closed one and is not to be
expanded. The right to light may therefore be the only negative easement which
may be recognized today.
Based on these characteristics, following are the rights that have been
recognized as easements:

1. Right of way: BORMAN V GRIFFITHS

2. Right to Light: COLLS V HOME & COLONIAL STORES; amount of

light required can be according to nature of property e.g., at a warehouse, not
much light is required.

3. Right to water: RACE V WARD; has to be specific so only if running

through a pipeline or stream.

4. Right to air: WONG V BEAUMONT PROPERTY TRUST; can only be

specific for e.g., through a duct.
5. Right to support: DALTON V ANGUS: e.g., a common wall. But there can
be no positive obligation to maintain the wall unless necessary.

6. Right to use facilities: MILLER V EMCER PRODUCTS e.g., a toilet or a

letterbox.

7. Parking: LONDON & BLIENHAM ESTATES V LADBROKE,

MONCRIEFF V JAMIESON.

8. Rights to storage/signage: WRIGHT V MACADAM; e.g., keeping a

dustbin, hanging a sign board, having an antenna on a roof.
 CREATION OF AN EASEMENT

Once it is established that a purported right is intrinsically capable of being an

easement, it must be validly created as a proprietary right. Easements may be
created expressly or impliedly. Easements created either way can exist at law (as
legal easements) or they can exist in equity (as equitable easements). Both legal
and equitable easements can be created thru express reservations or grants or
implied reservations or grants.
 EXPRESS CREATION

LEGAL EASEMENTS EQUITABLE EASEMENTS

An express easement will be legal if: An express easement will be equitable if:

1. The easement is created by deed 1. The easement is created in compliance

(s.52 LPA 1925 (which satisfies s.1 with s.53(1)(a) LPA 1925 or under a
LP(MP)A 1989)) and defective deed but at least in compliance
2. EXPRESS CREATION:
The easement GRANTto a
is attached with s 2 LP(MP)A 1989 or
freehold or a leasehold (s.1(2)(a) LPA 2. The easement is made for a duration
1925) and other than in connection with a freehold
3. If created after October 2003 on or leasehold estate or
registered land – it is substantively 3. The easement is created by a person
registered (s.27 LRA 2002). with only an equitable estate in the land.
Legal and equitable easements made expressly can either be made thru express
reservations or express grants.
 EXPRESS CREATION: LEGAL/EQUITABLE EASEMENTS

EXPRESS RESERVATION EXPRESS GRANT

An express reservation arises where Express grant is fairly self-

the owner of the dominant tenement explanatory: the owner of the servient
(House 1 below) deliberately and tenement (House 2 in illustration
expressly keeps or reserves the right below) deliberately grants the right
forEXPRESS when they sell
themselvesCREATION: or lease
GRANT over their land to the owner of the
part of their land to another (B in dominant tenement (House 1 in
illustration below), which then illustration below). Here, the
becomes the servient land (House 2 servient owner creates the easement.
below). Here, the dominant owner
creates the easement.
 ILLUSTRATION: EXPRESS RESERVATION
A OWNS BOTH HOUSES. HE SELLS/LEASES HOUSE 2 TO B AND
EXPRESSLY RESERVES A RIGHT FOR HIMSELF TO USE THE GARDEN ON
HOUSE 2
HOUSE 1 HOUSE 2
(A OCCUPIES) (SOLD/LEASED TO B)

A can use B’s garden

DOMINANT SERVIENT
TENEMENT TENEMENT
 ILLUSTRATION: EXPRESS GRANT
B EXPRESSLY GRANTS AN EASEMENT TO HIS NEIGHBOUR A TO
USE B’S GARDEN

HOUSE 1 HOUSE 2
(OWNED BY A) (OWNED BY B)

A can use B’s garden

DOMINANT SERVIENT
TENEMENT TENEMENT
An expressly created easement is legal if reserved/granted by deed (and the
other requirements for a legal easement are satisfied). An expressly created
easement is equitable if reserved/granted on a written instrument or
contract.
 IMPLIED CREATION

In the absence of an express easement between parties, an easement may be

implied. Essentially, implied easements are not created on independent deeds
or contracts. They are in fact not written anywhere. Implied easements arise
in the following scenario: two tenements are owned by one person, for
example, X. X then sells/transfers the freehold or creates a leasehold on
one of the tenements, retaining the other. Implied easements arise by
impliedly attaching to the sale/transfer of the freehold or creation of the
leasehold.
The nature of an implied easement will depend on the character of the
document into which it is attached or implied. If the easement is being implied
into a transaction (sale or lease) by deed, it will be a legal implied easement. If
the easement is being implied into a transaction (sale or lease) by contract, it
will be an equitable implied easement.
From the outset it should be noted however, that an easement by implication
will not arise where the parties stipulate that the only binding easements would
be those created expressly between them.

Given that no such restriction has been placed, an implied easement may arise
in one of several ways. Like express easements, implied easements also arise
either thru implied reservations or implied grants.

The circumstances in which easements will be impliedly reserved for the

dominant owner are fairly limited. On the other hand, implied grants for the
dominant owner may arise in a number of situations. Each method of creation
will be discussed in turn.
IMPLIED RESERVATION:

Implied reservations arise upon sale/lease of the servient land. Implied

reservations arise in favour of the seller, for the part he has retained. Implied
reservation of easements can occur in only two ways:

1) If there is the finding of an easement of necessity or

2) If there is a finding that at the time of the sale/lease of the servient land,
the parties had a common intention that an easement should exist.
 ILLUSTRATION: IMPLIED RESERVATION
A OWNS BOTH HOUSES. HE SELLS/LEASES HOUSE 2 TO B. THE
SALE/LEASE MAY CONTAIN AN IMPLIED RESERVATION IN FAVOUR OF A.

HOUSE 1 HOUSE 2
(A OCCUPIES) (SOLD/LEASED TO B)

A can use B’s garden

DOMINANT SERVIENT
TENEMENT TENEMENT
1) EASEMENT OF NECESSITY:

Easements of necessity are implied where the land retained by the owner (in the
case of reservations, the dominant land) would be useless without the existence
of an easement in its favour. The typical case is one where the dominant
tenement is ‘landlocked’ and the dominant owner would need a right of way
over the land conveyed. It is wrong to assume that ‘necessity’ would imply, for
example, a right to drainage, as land can be used without drains. The easement
must not be merely convenient or reasonably necessary. The claimant must
establish that without the easement, the tenement cannot exist at all. If other
alternatives are present, an easement of necessity will not arise.
In ADEALON INTERNATIONAL PROPRIETARY LTD V MERTON
LONDON BC it was held that where there had been no express reservation of
a right of way and there remained a realistic possibility of alternative access over
land belonging to third parties, no such right of way could be impliedly
reserved. The claimant (A) owned land bordering the A24 road, and the
defendant (M) owned neighbouring land which had another road, High Path, at
its northern boundary. A could not lawfully access either the A24 or High Path
without planning permission, which had been refused. Until 1989 the two plots
had been in common ownership. A claimed an easement by necessity over M’s
land in order to have access to High Path. Applying MANJANG V DRAMMEH
and NICKERSON V BARRACLOUGH no easement of necessity could exist
on the facts as there was an alternative route available.
• PARISH V KELLY: it is important that the necessity pleaded should have
existed at the date of transfer of the land and not be merely a necessity which
developed later on.

• NICKERSON V BARACLOUGH: if there is an express agreement against

the easement, it will not arise by implication.
2) EASEMENT OF COMMON INTENTION:

The law will imply ‘such easements as may be necessary to give effect to the
common intention of the parties’ (PWLLBACH COLLIERY V WOODMAN).
The acceptance of such a doctrine facilitates the implied creation of easements
in a much wider range of circumstances than that of necessity. What is required
is proof that the parties shared an intention as to a definite use of the land and
that the easement is required to facilitate that use.
The courts are generally reluctant to reserve easements thru implication. In
CHAFFE V KINGSLEY, the Court of Appeal refused to impliedly reserve an
easement as the alleged easement was too unspecific and imprecise to justify
such a step. They emphasized that if the alleged easement is so crucial to the
seller, it should be inserted expressly into the conveyance. Afterall, it is well
within the power of the seller to reserve an easement as a condition of the sale
to the purchaser. Consequently, the law leans against implied reservations of
easements, both thru necessity and common intention.
IMPLIED GRANT:

Implied grants arise upon sale/lease of the dominant land. Implied grants
arise in favour of the purchaser of the dominant land. Implied grants can arise
in four ways:

1) If there is the finding of an easement of necessity or

2) If there is a finding that at the time of the sale/lease of the dominant land,
the parties had a common intention that an easement should exist or

3) If Wheeldon v Burrows applies or

4) If s 62 LPA 1925 applies.

 ILLUSTRATION: IMPLIED GRANT
A OWNS BOTH HOUSES. HE SELLS/LEASES HOUSE 1 TO B. THE
SALE/LEASE MAY CONTAIN AN IMPLIED GRANT IN FAVOUR OF B.

HOUSE 1 HOUSE 2
(SOLD/LEASED TO B) (OWNED BY A)

B can use A’s garden

DOMINANT SERVIENT
TENEMENT TENEMENT
1) EASEMENT OF NECESSITY:

Easements of necessity are implied where the land sold/leased by the owner (in
the case of grants, the dominant land) would be useless without the existence of
an easement in its favour. ‘When a man grants a house, he grants that which is
necessary for the existence of that house’. (BIRMINGHAM, DUDLEY &
DISTRICT BANKING V ROSS).
In WONG V BEAUMONT PROPERTY, basement property in a building
owned by the defendant was leased as a restaurant to the claimant. The claimant
asserted an easement for passage of air through a duct to be constructed on the
landlord’s property and was successful on the grounds that it was necessary if
the contemplated use of the property were to continue. The courts recognized
an easement of ventilation by necessity as without it, the property could not be
used as a restaurant.
Generally, it is easier to claim an implied grant of an easement of necessity than
it is an implied reservation, but all cases show that a real necessity must exist.
These easements are being claimed as necessity, not mere convenience. So, in
MANJANG V DRAMMEH, an easement of way by necessity could not exist
over the alleged servient land, because the owner of the alleged dominant
tenement could access his land by boat along a navigable river. In RE MRA
ENGINEERING, access to the dominant land was possible on foot and so any
implied easement of necessity for vehicles was rejected. Likewise, in WALBY
V WALBY, the court has emphasized that it is not enough if the easement is
necessary for the reasonable enjoyment of the dominant land: the test is a strict
one and the claimant must show that without the easement, the land could not
be used at all.
2) EASEMENT OF COMMON INTENTION:

The law will readily imply ‘such easements as may be necessary to give effect to
the common intention of the parties’ (PWLLBACH COLLIERY V
WOODMAN). The acceptance of such a doctrine facilitates the implied
creation of easements in a much wider range of circumstances than that of
necessity. What is required is proof that the parties shared an intention as to a
definite use of the land and that the easement is required to facilitate that use
(DONOVAN V RANA).
In STAFFORD V LEE, the court emphasised that common intention is distinct
from necessity. In Stafford, the claimant (purchaser) wished to build a house on
his own land, when the only practical access for construction purposes was over
the defendant’s land. As the land had been sold to the claimant by the defendant
with a view to the construction of the house, an easement of way for the purpose
of the construction was held to have been granted on the basis of common
intention. In LINVALE V WALKER, an easement of way was implied in favour
of the purchaser in order to facilitate the common intention that the land be fully
utilized so as to maximise profit for the owners. The defendants were not
allowed to derogate from their grant by compromising the purpose behind the
purchase.
3) EASEMENTS UNDER THE RULE OF WHEELDON V BURROWS:

As with all implied grants, Wheeldon may create an easement by implied grant
upon sale/lease of the dominant land. THESIGER LJ held that the rule confers
on B, the purchaser of part of A’s land, the benefit of any acts of user over the
land retained by A which A (as owner of the whole) had found it reasonably
necessary to exercise on his own behalf, during the period prior to the division,
for the benefit of the part now conveyed. When A himself was exercising the acts
of user, they could not qualify as easements as there was no distinguishable
dominant and servient owner but became potential or quasi-easements. The
rule in Wheeldon ripens these quasi easements into easements by implied
grant.
 ILLUSTRATION: WHEELDON V BURROWS
A owns both houses. He lives in HOUSE 1 and uses the garden of HOUSE 2. This
use cannot amount to an easement as the houses are owned and occupied by the same
person.

HOUSE 1 HOUSE 2
(OCCUPIED BY A) (OWNED BY A)

A uses garden of
HOUSE 2
 ILLUSTRATION: WHEELDON V BURROWS
However, under the legal microscope, when A uses his own garden, it creates
a quasi-easement. The benefitted land becomes a quasi-dominant land and
the burdened land becomes the quasi-servient land.
HOUSE 1 HOUSE 2
(OCCUPIED BY A) (OWNED BY A)

QUASI-
EASEMENT

A uses garden of H 2
QUASI-DOMINANT QUASI-SERVIENT
TENEMENT TENEMENT
 ILLUSTRATION: WHEELDON V BURROWS
So, when A sells/leases the quasi-dominant land to B, the quasi easement and
the quasi tenements ripen or convert into full easements and tenements by
implied grant.
HOUSE 1 HOUSE 2
(SELLS/LEASES TO B) (OWNED BY A)

QUASI-
EASEMENT

Now B will have the right

to use garden
QUASI-SERVIENT
QUASI-DOMINANT
TENEMENT
TENEMENT
As with all implied methods, the doctrine in Wheeldon applies where there is a
sale or lease of the dominant property. Wheeldon can only convert those uses
which the owner exercised himself before selling part of his land. For Wheeldon
to apply, three requirements must be satisfied. The quasi-easement must have
been:

1. continuous and apparent and,

2. necessary to the reasonable enjoyment of the land sold and,

3. the quasi-easement must have been in use at the time of conveyance.

1. CONTINUOUS & APPARENT:

The use of the quasi-easement before the sale by the common owner-occupier
(A) must be continuous and apparent. The use of the word ‘continuous’ in this
formulation has been judicially characterised as ‘all but superfluous’.
Accordingly, the question is whether the use by the common owner-occupier
was ‘apparent’. An easement is ‘continuous and apparent’ if it is used regularly
and in an uninterrupted manner and is visible on inspection of the servient land
on which it exists. This requirement will be satisfied if there are visible signs of
the use on the ground or the use is so obvious that its existence cannot be
doubted (WOOD V WADDINGTON). As an example, a right of way need not
be used every day but should be used regularly and evidenced by a well-worn or
obvious path on the servient tenement.
2. NECESSARY TO THE REASONABLE ENJOYMENT OF LAND:

The easement must be necessary for the reasonable enjoyment of the dominant
land. This is not the strict necessity required to create an easement by necessity
as suggested in WHEELER V JJ SAUNDERS. This is simply a necessity for the
reasonable enjoyment of the land, so it can include drains, power lines, rights
of way etc. simply because they are convenient adjuncts of land. So, even if the
property is not landlocked and the grantee is therefore not entitled to a right of
way by necessity, the grantee may still be entitled to claim a right of way under
this rule as it may be simply a more convenient right of way. The use must simply
facilitate the enjoyment of land. This approach has been approved in
MILLMAN V ELLIS and HILLMAN V ROGERS. In determining whether the
right claimed is necessary to the reasonable enjoyment of the property granted,
the courts will take into account the inconvenience likely to be caused to the
servient owner (GOLDBERG V EDWARDS).
There was some uncertainty as to whether requirement 1 and 2 were alternative
or cumulative requirements. Earlier authorities seemed to suggest that either
of the two must be satisfied (WHEELER V JJ SAUNDERS). However, the
recent Court of Appeal decision in WOOD V WADDINGTON assumes that
both these conditions need to be satisfied.
3) THE QUASI-EASEMENT MUST HAVE BEEN IN USE AT THE TIME OF
CONVEYANCE:

The rule in Wheeldon catches only those easements which had been used and
at the time of the relevant transfer, were still in use by the owner of the entirety
for the “benefit” of the part now conveyed away. In COSTAGLIOLA V
ENGLISH, MEGARRY J did not regard it as discontinuance when the quasi-
easement had not been actively enjoyed to any great extent during the ten or
eleven months preceding the relevant conveyance but had been regularly used
before that. In ALFORD V HANNAFORD, the court held that the alleged right
must actually have been in use prior to the sale or lease. Failure to establish that
the right was being used is fatal, even if it is obvious that it could have been used
to benefit the quasi-dominant plot.
If simultaneous transfers are made where the dominant land is transferred to X
and the servient land is transferred to Y, Wheeldon would operate in the same
manner to convert any quasi easement in favour of the dominant purchaser.

Like all methods of implied creation, the easement created by implied grant will
take the flavour of the document into which it is implied. So, if the sale/lease to
B (illustration above) is thru deed, the easement will be legal and if the
sale/lease to B is by contract then the easement will be equitable.

Lastly, if the application of Wheeldon has been excluded, no implied grant will
arise.
4) EASEMENTS UNDER SECTION 62 LPA 1925:

As with all implied grants, S 62 may create an easement by implied grant upon
sale/lease of the dominant land. S 62 provides that “a conveyance of land shall
operate to convey with land all…liberties, privileges, easements, rights and
advantages (which) at the time of conveyance (are) enjoyed w/the land.”
It must be remembered that, as with any method of creation, s 62 becomes
relevant only if the right in question is intrinsically capable of being granted as
an easement: which means that the right must comply with all the requirements
of Re Ellenborough Park. Most importantly, the user must not be excessively
precarious or personal. This excludes from the ambit of s62 any privilege which
is contemplated by the parties as having a purely temporary nature or which is
exercised on an excessively intermittent basis or on the footing of an extremely
fragile permission. Thus, in GREEN V ASHCO HORTICULTURIST an
easement by s62 was denied as there was evidence that the user was extremely
precarious, in that the access in question had been permitted to the tenant only
at times when the landlord did not find such user inconvenient. On the other
hand, in HAIR V GILLMAN, the permission to park a car was converted into
an easement. Last, it is clear that a personal privilege will not suffice such as
permission to play football somewhere on the land can never convert into an
easement.
S 62 has a dual effect: it first passes on easements that already exist and second,
creates new easements out of merely revocable privileges, permissions or
licences. The following requirements must be met for the trigger of s62:

1. There must be the conveyance of a legal estate and,

2. The use must be made prior to the date of conveyance and,

3. The use must be either continuous and apparent or exercised with diversity
of occupation
1. CONVEYANCE OF A LEGAL ESTATE:

S 62 will only be triggered where the legal freehold or leasehold estate is

conveyed. To this end, an oral lease for not more than 3 years is generally legal
but, in this case, it was held that “conveyance” as per s 205 LPA 1925 requires
a written instrument. Thus, s 62 will not be triggered where an oral lease of this
nature is created. In contrast to Wheeldon, s 62 can only create legal
easements because the general words of s 62 will only be implied into any
conveyance of a legal estate in land (unless expressly excluded). This means
that s 62 will only apply to a sale/lease of the estate by deed. Consequently, s
62 will not apply when the sale/lease of the estate is made on contract.
easements. S 62 will not apply when the sale/lease of the estate is made on
contract.
2. USER PRIOR TO THE DATE OF CONVEYANCE:

This simply requires a “pattern of regular use” during “a reasonable period of

time before the grant in question”. The law does not require the privilege to be
exercised till the precise moment of the transfer which triggers s 62, but simply
be used within a reasonable period before the sale/lease.
3) THE USE MUST BE EITHER CONTINUOUS AND APPARENT OR
EXERCISED WITH DIVERSITY OF OCCUPATION:

For any use to be created by s 62, it must be used ‘continuously and apparently’
or it must be used by one party against another i.e., with prior diversity of
occupation. In this manner, s 62 can create easements in two very distinct
scenarios. First, where the right or privilege is continuously and apparently
exercised prior to the conveyance, s 62 will operate to transfer the right into an
easement for the purchaser of the dominant land. A diversity of occupation of
the dominant and servient tenements, prior to the conveyance, is not required.
To this extent, s 62 replicates the effect of Wheeldon v Burrows. The meaning
of ‘continuous and apparent’ is to be derived from the House of Lords decision
in P & S PLATT V CROUCH.
In P & S PLATT V CROUCH, the defendants owned and occupied plots A and
B. Activities (mooring, right of way and of signage) were conducted on B for the
benefit of A (thus making B the quasi-servient and A the quasi-dominant land).
A was then sold to the claimants. PETER GIBSON LJ explicitly stated that “the
rights were continuous and apparent and so s 62 would operate to convert them
into easements”. The effect of Platt is that continuous has the same meaning as
given to it for purposes of Wheeldon i.e., not that the right be used 24/7 but
that the right be available whenever it needs to be used. Platt has since then been
endorsed and applied in WOOD V WADINGTON.
 ILLUSTRATION: P & S PLATT V CROUCH
A owned both plots of land. He ran a hotel in LAND 1 and used LAND 2 for
parking, right of way and signage. This use could not amount to an easement as the
plots were owned and occupied by the same person.

LAND 1 LAND 2
(OCCUPIED BY A) (OWNED &USED BY A)

A uses L2 for right of

way, parking and (right of way, parking,
signage signage)
 ILLUSTRATION: P & S PLATT V CROUCH
However, under the legal microscope, when A uses his own land, it creates a
quasi-easement. The benefitted land becomes a quasi-dominant land and
the burdened land becomes the quasi-servient land.
LAND 1 LAND 2
(OCCUPIED BY A) (OWNED & USED BY A)

QUASI-
EASEMENT

A uses L 2
QUASI-DOMINANT QUASI-SERVIENT
TENEMENT TENEMENT
 ILLUSTRATION: P & S PLATT V CROUCH
When A sells/leases the quasi-dominant land to B, the quasi easement and the
quasi tenements ripen or convert into full easements and tenements by implied
grant.
LAND 1 LAND 2
(SELLS/LEASES TO B) (OWNED BY A)

QUASI-
EASEMENT

Now B will have the right

to use L2 in the same way
QUASI-SERVIENT
QUASI-DOMINANT
TENEMENT
TENEMENT
Second, s 62 can create an easement out of a mere privilege or licence given to
an occupant of the dominant land. Where a privilege or licence is used with
prior diversity of occupation, then s 62 can operate to convert those users into
easements too. This second scenario in which s 62 operates is illustrated in
INTERNATIONAL TEA STORES V HOBBS. In Hobbs, A owned two plots of
land. He lived in land 2 and leased out land 1 to B. B was allowed to exercise
certain privileges over land 2. This made land 2 a quasi-servient tenement and
land 1 a quasi-dominant tenement. Upon a further lease of land 1 to B, the
privilege was converted into an easement by virtue of s 62. Please note that if
the further lease had been made in favour of a new lessee, X, the privilege that
B was exercising would similarly convert into an easement in favour of X.
 ILLUSTRATION: INTERNATIONAL TEA STORES V HOBBS
A owned both lands. He occupied land 2, and leased out land 1 to B. B was then
given permission to use a right of way on land 2. This was just a licence or a privilege
because it was not validly created as an easement. But it created quasi easements &
tenements.
LAND 1 LAND 2
(LEASED TO B) (OWNED & USED BYA)

QUASI-
EASEMENT
B uses L 2 informally
QUASI-DOMINANT QUASI-SERVIENT
TENEMENT TENEMENT
 ILLUSTRATION: INTERNATIONAL TEA STORES V HOBBS
The first lease to B expired. A then renewed the lease to B. Upon this renewal
or creation of a second lease for B, the words of s 62 were triggered and they
converted the informal privilege B was enjoying into a full easement.
LAND 1 LAND 2
(SECOND LEASE TO B) (OWNED & USED BYA)

QUASI-
EASEMENT

B’s use converts into an

easement QUASI-SERVIENT
QUASI-DOMINANT TENEMENT
TENEMENT
Similarly, in HAIR V GILLMAN & INSKIP, the court of appeal held that
permission given to the tenant of a building by the landowner to park on a
forecourt was converted into an easement by s.62 when the landlord conveyed
the freehold of the building to the tenant.

Any easement created expressly or impliedly will necessarily include all

secondary or ancillary easements which facilitate or enable the use of the
primary easement.
 ENFORCEABILITY AGAINST THIRD PARTIES

The benefit of an easement will pass to a transferee of the dominant tenement,

since the easement is attached to the land itself. The burden of an easement can
only be enforced against a transferee of the servient tenement according to the
rules of the regime under which the transaction of the servient land falls i.e.,
unregistered land or registered land.

UNREGISTERED LAND: In unregistered land, all legal interests bind the

world. Thus, a legal easement will be accordingly binding. Equitable easements
are to be protected as a class D (iii) charge except easements made on or before
1st Jan 1926 and easements arising by estoppel. These excluded easements are
governed by the doctrine of notice.
REGISTERED LAND: In registered land, a legal express easement is a
registrable interest and must be protected accordingly. If the easement is
created by deed but not registered it takes effect in equity only (s 27 LRA
2002). A buyer takes free of every encumbrance except for a registered charge
(s29(1) & 29(2) LRA 2002). Under Schedule 3 para 3, all legal implied
easements are overriding i.e., easements that arise from legal implied grant or
reservation and those that arise by virtue of s 62 LPA 1925. Moreover, para
3(1) excludes those easements from being overriding that are not known to the
purchaser of land or those that would not have been obvious on a reasonably
careful inspection of the land. Para3(1) tilts the balance too far in favour of the
purchaser so a further sub-paragraph, para 3(2), provides that para 3(1) will not
apply if the person entitled to the easement can show that it has been exercised
in the year preceding the disposition. All equitable easements (express or
implied) are to be protected by entry of a notice on the register (32(1) & s32(3)
LRA 2002).
 EXTINGUISHING AN EASEMENT

1) An easement comes to an end where the dominant land and the servient land
come into common ownership and possession.

2) An easement can also be terminated by express release. Mere non-use will

not terminate an easement automatically.