Easements: what they are and how they are created?

Imagine two plots of land – Land A and Land B, both of which are retail units. Owners of Land A make use of a small road which sits between the two retail units for daily deliveries of stock. Business at Land B is doing very well and the owners of Land B decide they need to enlarge their store. The only available space for an extension is the small road.  Fortunately for Land B, that road sits within their freehold title. They obtain the necessary planning permission and get to work. However, owners of Land A realise the extension will substantially reduce the width of the existing road, meaning their delivery trucks will no longer be able to use it. The rest of Land A is taken up by the retail unit itself and a customer car park which tends to reach full capacity quickly and cannot be used for regular deliveries. Must the owners of Land A simply resign themselves to the fact that the owners of Land B may do with their land as they wish (subject to planning)? Not necessarily.  A deep dive into the title deeds of both plots may reveal an easement for the benefit of Land A to pass and repass over the small road at all times and with or without vehicles.  Easements are not to be taken lightly – just like a freehold estate, they are a form of proprietary interest. They can be a rather murky area of property law (with some statutes dating back to the late years of the industrial revolution). In part 1 of this series, we look at the basics of easements – what are they, and how they are created. In part 2, we will look at easements more practically – how they can be discovered and then either enforced or challenged (depending on if you’re owner of Land A or Land B), with a particular focus on prescriptive easements. What is an easement? An easement is a right which is enjoyed by one piece of land over another. The land which benefits from an easement (Land A in the above example) is known as the dominant tenement. The land which is burdened by an easement is known as the servient tenement (Land B).  An easement is positive when the owner of the dominant tenement has a right to do something on the servient tenement. Conversely, an easement is negative when the dominant tenement has a right to receive something from the servient tenement without interference (which makes it similar in nature to, but not the same as, a restrictive covenant). Easements can come in all manner of forms – anything from a right to place clothes on lines to a right to use sporting facilities on land adjoining holiday timeshare properties.  However, the two most commonly found easements are rights of way and rights to light. 1. Rights of way A right of way grants the owner of the dominant tenement the right to pass along a defined route located on the servient tenement (usually to facilitate some form of access path for the dominant tenement).  In addition to defining the route which may be passed, a specific right of way can define the manner in which the right can be exercised – eg at certain times of the day or with or without vehicles.  A right of way can be supported by ancillary rights and obligations, such as the dominant owner’s right to carry out repairs and maintenance to the route which forms the right of way, or the dominant owner’s obligation to contribute to the cost of repairs and maintenance carried out by the servient owner. 2. Rights to light A right to light grants the owner of the dominant tenement the right to receive natural light over the servient tenement and through its windows.  An owner of the servient tenement interferes with that right if they then erect constructions on the servient tenement which reduce the natural light received on the dominant tenement to below a certain level. How are easements created? Easements do not merely amount to permission or a licence granted by the servient tenement in favour of the dominant tenement.  An easement is an interest which attaches to land and will bind successors in title. An easement can be created by express grant, implied grant, or by prescription.  Easements created by express grant An easement can be granted by agreement between the parties (which must take the form of a deed). Most often, the grant of an easement is made when land is being transferred and the grantor wishes to retain some rights over the land which it is transferring.  In these cases, an express provision for an easement can be found in the relevant transfer document (by reference to plans, if necessary).  An express easement can, for example, read as follows: “Right to pass and repass with or without vehicles for all purposes whatsoever in, over, and along the road shown coloured red on the plan below.” Once an easement is created by express grant, future transfers of the dominant land do not need to make a specific provision for the onward transfer of that easement (as already mentioned, an easement attaches to land).  Section 62(1) of the Law of Property Act 1925 also reiterates this point. It is possible for a transfer of land to be silent on easements and for the benefit and burden of the existing legal easements to nonetheless pass with that transfer. Alternatively, a transfer can simply state that any existing easements are transferred with the land without specifying the details of any such easements. Easements created by implied grant A grant of an easement can be implied when a piece of land is transferred by reason of: Necessity For example, where the land transferred is landlocked and has no legally enforceable means of access, a right of way by necessity may be implied to enable the land to be used; Common intention of the parties Where it can be shown that both parties had a common intention for the transferred or retained land to be used in a certain manner, an easement necessary to give effect to that intention may be implied; The rule in Wheeldon v Burrows Where continuous and apparent easements are used for the benefit of the transferred land at the time of its disposition, and are necessary for the reasonable enjoyment of the transferred land, grant of those easements may be implied Wheeldon v Burrows (1879) 12 Ch D 31). Easements created by prescription In the absence of either an express or implied grant, an easement can still be created by prescription, ie by the dominant land making use of a right over the servient land for a sufficiently long time.  Rules on the creation of easements by prescription derive from three sources – common law prescription, the doctrine of lost modern grant and the Prescription Act 1832.  The three main criteria are: 1. Length of use An easement must have been enjoyed for at least 20 years. Under common law prescription, an easement used for at least 20 years was presumed to have commenced before 1189 (ie time immemorial, or what was once the limitation for the recovery of land created by the Statute of Westminster 1275).  Under the doctrine of lost modern grant, the grant of the easement is presumed to have been lost after 20 years of use and any interruption in use after those 20 years is irrelevant. Under section 2 of the Prescription Act 1832, 20 years of use immediately before a legal action (eg application to register an easement at the Land Registry) crystallises the easement. 2. Use of the easement by a dominant tenement against a servient tenement The easement must have been used by the owner(s) of the dominant tenement against the owner(s) of the servient tenement.  For example, in the case of rights of way, if the use relied on by the dominant tenement was enjoyed while the servient tenement was let, then a prescriptive easement will generally not arise. If the use relied on by a dominant tenement was enjoyed by a tenant of the dominant tenement, that use is deemed to be on behalf of the freehold owner. 3. Quality of enjoyment The use must be “as of right”, meaning without force, without secrecy, and without permission. The burden of proving the requisite quality of use is on the person claiming the prescriptive easement.  If such use is established, the owner of the servient tenement is taken to have acquiesced to the open use of an easement.  There are, of course, other, albeit less encountered, aspects of the law on easements (eg equitable easements) but the above gives us a sufficiently comprehensive theory of easements to consider more practical aspects of easements in part 2 of this article. A selection of some recent easement decisions  HXRUK II (CHC) Ltd v Heaney [2010] 3 EGLR 15 What happened? The claimant and defendant both owned commercial buildings in the centre of Leeds. The defendant’s building had the benefit of a right to light. The claimant planned to extend its building by adding two floors and was made aware that this extension would result in an actionable interference to the defendant’s right to light. Nevertheless, the claimant started the works on the extension. The defendant threatened to issue court proceedings against the claimant. The claimant ignored the threats, completed the extension, and then sought a declaration from the court that it was not liable to the defendant for an actionable interference to his right to light. The defendant instead sought an injunction requiring the claimant to tear down the extension. What did the court decide? The High Court ruled in favour of the defendant – the claimant had interfered with the defendant’s right to light, and an injunction (not damages) was the appropriate remedy. The case was due to be heard on appeal before the Court of Appeal but was settled by the parties. The decision of the High Court has not therefore been overruled although it is unclear how a similar case would be decided by courts today, following the Supreme Court’s ruling on the relationship between injunctions and damages in Lawrence v Coventry (t/a RDC Promotions) and others [2014] USKC 46; [2014] 3 EGLR 71. Winterburn v Bennett [2016] EWCA Civ 482; [2016] EGLR 35 What happened? The appellants owned a fish and chip shop adjacent to a car park which was owned by the respondents. Appellants and their customers used the respondent’s car park when accessing the shop for many years. There was a sign attached to a wall of the car park which read “Private car park. For the use of club patrons only”. In 2012, the tenants of the car park obstructed the access from the car park to the appellant’s shop. The appellants claimed to have acquired a prescriptive easement to park on the respondent’s car park. What did the court decide? The Court of Appeal ruled in favour of the respondents – the presence of the “private car park” sign meant the appellant’s use was not “without force” and therefore not “as of right”. The respondents were not required to go as far as to physically obstruct the appellant’s use to prevent the creation of a prescriptive easement. Brothers Enterprises Ltd v New World Hospitality UK Ltd [2017] EWHC 2455 (Ch) What happened? The claimant owned a restaurant. The defendant owned an adjacent hotel. The claimant’s restaurant had the benefit of a right of way for its customers to use the hotel’s toilets. The defendant intended to carry out refurbishment works to the hotel which required the right of way to be temporarily closed off. The claimant rejected an alternative access solution offered by the defendant as it would have reduced the restaurant’s kitchen area. The defendant proceeded with the refurb works and notified the claimant that the right of way would be closed five days a week for seven weeks. The claimant sought an injunction to require the defendant to keep the right of way open. What did the court decide? The defendant’s works substantially interfered with the claimant’s right of way. However, the High Court refused to grant the injunction because, among other reasons, the extent of the interference was temporary, an alternative access was offered by the defendant, and the restaurant’s losses for the interference were capable of being quantified. The High Court also said an injunction would have been oppressive to the defendant who needed to carry out refurb works to an old hotel building which were not possible without blocking the right of way. The defendant’s works were allowed to continue, and the claimant would be able to pursue a claim for damages against the defendant. Oskar Musial is a solicitor in the property litigation team at Brabners Image © Evgeniy Grozev/Pexels