Экзамен зачет учебный год 2023 / Dixon, Modern Land Law

Modern Land Law

accept undue restrictions on the servient land. In a similar vein to the general disapproval of positive obligations, a court will only reluctantly allow an easement which gives the dominant tenement owner a right to prevent the servient tenement owner from doing something on their own land (Phipps). This would affect the future use and enjoyment of the servient tenement in an unwarranted manner. Such obligations fall more properly within the realm of restrictive covenants than of easements where they are subject to tighter controls. However, some traditional easements clearly do have this effect, as where the easement of light effectively prevents the servient owner from building on parts of his land. Similarly, there is a reluctance to recognise an easement that gives the dominant tenement owner a large measure of occupation or control of the servient tenement. An easement is a right over the servient land 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. For example, in Copeland v. Greenhalf (1952), no easement could exist to store tools of the trade on the servient land; in Grigsby v. Melville (1974), a right of storage in a cellar could not be accepted; and in Hanina v. Morland (2000) the alleged right to use the flat roof of neighbouring land could not be an easement because it was equivalent to ownership. Similarly, in Batchelor v. Marlowe (2001) and Central Midlands Estates v. Leicester Dyers (2003), a right to park several cars on the alleged servient land could not be an easement by analogy with Copeland as the impact on it was too great and was inconsistent with the limited nature of easements. In other words, it is a question of degree in each case whether the dominant rights are so extensive as to prevent them being recognised as easements. In essence, the question is whether the alleged easement would leave the servient owner a reasonable use of his own land – London and Blenheim Estates Ltd v. Ladbroke Retail Parks Ltd (1992). However, in Moncrieff v. Jamieson, Lord Scott suggested a more radical approach to the problem. In his view, the relevant question is not whether the alleged easement permits the servient owner a reasonable use of their land, but rather whether the alleged easement leaves the servient owner in possession and control of their land. On this view, even very extensive use of the servient land might amount to an easement, provided that the servient owner retained possession and control, and on this basis Lord Scott doubts whether Batchelor v. Marlowe (in denying an easement) was rightly decided.25

25Lord Scott also has doubts about Copeland v. Greenhalf but is prepared to uphold the decision on its facts.

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However, not all of their Lordships in Moncrieff would go as far as Lord Scott26 and it cannot be said with certainty that his interpretation is correct.27 At present then, it is safer to rely on the ‘reasonable use’ test, bearing in mind that the law must be flexible in the face of changing patterns of land use. In Wright v. Macadam (1949), the tenant successfully claimed an easement of storage of coal in a small part of the landlord’s coal shed and there is perhaps little to distinguish this case from Copeland and Melville, save only that the court’s assessment of the impact of the alleged easement on the servient land in Wright revealed that the servient owner would not thereby be deprived of substantial use of his own property.28

It is apparent, then, that flexibility is inherent in the Ellenborough conditions, especially in the fourth criterion, and it would be unfortunate if the development of the law of easements was circumscribed by too exacting and rigorously applied conditions. Fortunately there is no evidence that this is the case and new easements can be accepted if this is consistent with precedent and policy. While the title to servient land cannot be ‘clogged’ by haphazard acceptance of new easements, the law of easements must develop in tune with changing social, economic and technological circumstances.29

7.2.5 Public policy

Public policy is not mentioned expressly in Re Ellenborough Park (1956) as a factor in deciding whether a right may exist as an easement. In any event, as noted above, that case attempted to define the intrinsic characteristics of an easement, rather than laying down comprehensive rules about when the courts would accept that a specific easement actually existed. To put it another way, the Ellenborough conditions tell us when a right is capable of being an easement; they do not necessarily tell us when that right will be recognised as an easement in a specific case. However, we must proceed with considerable caution when suggesting that considerations of ‘public policy’ might have an impact on whether a right that qualifies in principle as an easement will in fact be recognised as such in a concrete case. Rarely are questions of ‘public policy’ openly discussed in the cases. It is more likely that a court will refuse to recognise an easement for failure to comply with one of the

26Lord Neuberger in particular was not convinced.

27The Law Commission in its March 2008 Consultation Paper on Easements, Covenants and Profits a Prendre (CP No. 186) takes the view that Lord’s Scott new test is not particularly helpful.

28It may be that in Wright v. Macadam the court felt disposed to protect the tenant in the full enjoyment of his rights against an ungenerous landlord.

29For example, it is clear that it would be possible to create easements to place a television satellite dish on a neighbour’s land and to run fibre optic cables beneath it.

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Ellenborough rules than on explicit public policy grounds, even if this would have been justified. Yet the flexible nature of the Ellenborough conditions means that there is always scope for judicial discretion and public policy. For example, in Hill v. Tupper (1863), it may well have been against the public interest for a particular individual to have exclusive rights to a waterway, and the absence of any similar problem in Moody v. Steggles (1879) might explain the acceptance of a ‘commercial’ easement in that case. Likewise, was the easement of storage accepted in Wright v. Macadam to protect a vulnerable tenant against a powerful landlord? And in Platt v. Crouch did the court accept the existence of the easements of mooring and signage because the defendant had, effectively, escaped from an obligation to sell the servient land to the claimant on what many would regard as a technicality?30

7.3 Legal and equitable easements: formalities

As noted above, in order to exist in fact as an easement, the right must be created with a sufficient degree of formality. Like a number of other proprietary rights, an easement may be either legal or equitable31 depending on the type of instrument used to create it and failure to use formality when required means that no easement will exist at all.32 Further, the distinction between ‘legal’ and ‘equitable’ easements remains important in modern land law despite the entry into force of the Land Registration Act 2002 and will continue to do so until e-conveyancing becomes widespread.33

7.4 Legal easements

In order for an easement to be a legal interest, there are a number of essential conditions that must be met. These appear to be quite complicated, but it must be noted that they are satisfied in the great majority of cases. Normal conveyancing practice on the transfer of land usually ensures that the appropriate formalities are completed.

An easement can qualify as a legal interest only if it is held as an adjunct to a fee simple absolute in possession or as an adjunct to a term of years (section 1 of the Law of Property Act (LPA) 1925). Quite simply, this means

30The claimant had been given an option to purchase the defendant’s land – the land that was held to be servient – but the option had not been exercised. Had the claimant purchased the servient land, he would not have needed any easements, owning both tenements himself.

31Section 1 of the LPA 1925.

32In such cases, the claimant will be a mere licensee.

33Even then, the continued importance of ‘implied’ easements (being those not created electronically by entry on the register) will mean that the distinction cannot be abandoned altogether.

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that an easement is only capable of being a legal interest if it is attached to a dominant tenement that is held under a normal freehold or leasehold estate.34 Of course, most are.35 Second, and more importantly from a practical point of view, easements are legal only if they are created by statute, by deed or registered disposition, or by the process of prescription (long user). All other easements created by different means, even if held for a legal freehold or legal leasehold, must be equitable (if they exist at all).

7.4.1 Easements created by statute

Occasionally, an Act of Parliament may determine that a local authority, a corporation, or even a private individual shall be entitled to the benefit of an easement. Such easements will be legal. Note, however, that creation by statute does not refer to the creation of easements by the action of section 62 of the LPA 1925 (on which, see 7.9.4. below). Here, we are concerned with specific easements deliberately created by a specific Act of Parliament.

7.4.2 Easements created by prescription

Easements created by the process of prescription are also legal. Prescription signifies the acquisition of a right by long use; for example, where a person has enjoyed a right of way for many years. Prescription is discussed in more detail below, but for now we may note that prescription takes three forms: common law prescription, ‘lost modern grant’ and prescription under the Prescription Act 1832.

7.4.3Easements created by deed (unregistered land) or registered disposition (registered land)

The great majority of legal easements are created by deed (in the case of unregistered land), or by registered disposition entered on the register of titles (in the case of registered land). Easements created by this method are necessarily encompassed in a formal document (the deed or registered disposition) and rightly are regarded as legal rights. Indeed, the manner of their creation by formal documents ensures that their existence is more readily discoverable by a prospective purchaser of the servient land. As we shall see below, the creation of legal easements by deed or registered disposition may

34Note that in Wall v. Collins (2007) there is a suggestion that an easement can attach to the land itself, independent of any estate in it. This novel doctrine was important to the result in that case (because the dominant leasehold estate had been terminated through enlargement into a freehold), but it is not clear that it is correct.

35Easements held for other periods, for example, with a life interest or a surviving fee tail, must be equitable, but they are quite rare.

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occur in a wide range of circumstances, and may be either express or implied. Note, however, that whether the easement is expressly or impliedly created by a deed or registered disposition does not affect its quality as a legal interest. Thus, in unregistered land, the mere fact that an easement has been granted (expressly or impliedly) over an unregistered estate by deed is sufficient to constitute the legal interest. In registered land, however, the position is more complex.

Under the Land Registration Act 2002, an easement expressly granted36 out of a registered estate – that is, where the servient land is a registered title – must be entered on the title of the servient land in order to take effect as a legal interest.37 Failure to do so renders the easement equitable.38 This is so whenever the servient land is registered.39 Moreover, if the dominant land is registered, the benefit of the easement must also be noted against its title.40 In other words, registration of the burden of an expressly granted easement against the title of the burdened land is a precondition to its ‘legal’ status and, at the same time, ensures that any purchaser of the burdened land both knows about and is burdened by the easement. However, for impliedly granted easements affecting registered land and easements burdening servient land that is not registered – for example, where the servient estate is a lease for seven years or less – the easement is legal if created by deed in the normal way. Importantly, however, because such legal easements are by definition not noted on the title of the servient land,41 they take effect against a purchaser under the complex provisions relating to easements and overriding interests.42 Finally, although the current position is as just described, come the advent of e-conveyancing43 the creation of expressly granted easements will occur simultaneously with their registration and this will be done electronically. This means that eventually an expressly created easement will not exist at all until entered on the register of the servient land and this entry must be done electronically. Hence, when the full system of the 2002 Act comes into force, it will not be possible to create easements expressly in registered

36An easement is not ‘expressly’ granted by reason of the operation of section 62 of the LPA – see LRA 2002, section 27(7).

37Sections 25 and 27 of the LRA 2002 and Schedule 2, paragraph 7.

38Section 27(1) of the LRA 2002.

39So even if the grant took place in the context of a transaction which itself is not registrable – such as the grant of a lease for seven years or less which becomes the dominant title – the easement must still be registered against servient land of registered title even though the lease itself need not.

40Schedule 2, paragraph 7 of the LRA 2002.

41Either because they were not expressly created and so no opportunity for registration arises or because there is no registered title to register them against.

42See below.

43Assuming that expressly created easements are specified for e-conveyancing under section 93 of the LRA 2002.

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land by a material (i.e. non-electronic) deed or written contract: easements will exist only if entered on the register and this will be capable only by electronic entry. At that (still distant) time, deeds and written agreements will create nothing at all.

7.5 Equitable easements

Easements held for periods less than a fee simple absolute in possession or a term of years (leasehold) must be equitable. They are not included in the definition of legal estates and interests found in section 1 of the LPA 1925. However, most easements are created for these two estates, and the equitable quality of an easement more usually derives from the fact that the easement has not been created in the manner appropriate for the creation of legal rights. Consequently, an easement will be equitable even if held for a legal freehold or leasehold if it is not created by statute, nor by prescription, nor by deed/registered disposition (which includes the registration requirements noted above), provided that either the easement is embodied in a written contract which equity regards as specifically enforceable44 or the easement is created by proprietary estoppel. These two alternative conditions are the ‘formality’ requirements for the creation of equitable interests and mean that the easement must be created by signed writing, or fall within the limited exception of easements generated by proprietary estoppel. If even these more relaxed formality requirements for the creation of an equitable easement are not met, then the right cannot be regarded as an easement at all. It may then amount to a licence to use land, but of course this is a mere personal right unenforceable against a purchaser of the ‘servient’ land.

To expand on the criteria for the creation of equitable easements further, under section 2 of the 1989 Law of Property (Miscellaneous Provisions) Act, a contract for the creation of an interest in land (e.g. an easement) must be in writing, incorporating all the terms and be signed by both parties, if it is to be enforceable. So, rather as is the case with equitable leases, if the parties have entered into a written agreement (i.e. instead of a deed or registered disposition) which creates an easement, and if this agreement can be regarded as specifically enforceable under Walsh v. Lonsdale (1882), a court of equity will treat the contract as having been performed (even though it has not), and an equitable easement will be the result. It should be noted, however, that come the advent of e-conveyancing such a material contract will create nothing at all; the easement will be required to be created by an electronic instrument which will both create the right and register it at the moment of

44 Section 2 Law of Property (Miscellaneous Provisions) Act 1989 and Walsh v. Lonsdale (1882).

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its e-registration.45 Second, while it is no longer true that mere oral agreements as such can create equitable easements,46 an equitable easement may be created through the process of proprietary estoppel.47 Thus, in Ives v. High (1967), an oral promise, relied on by the promisee to their detriment, generated an equitable easement against the promisor because it was unconscionable to deny it. Of course, as noted below, in whatever manner the equitable easement came into existence – and they are rare in practice – they are vulnerable on a sale of the servient land and must be protected in the appropriate manner in the systems of registered and unregistered conveyancing if they are to remain enforceable after the sale.

7.6The significance of the distinction between legal and equitable easements in practice: easements and purchasers of the dominant or servient tenement

The most important reason for distinguishing between legal and equitable easements at the current time is because of the effect that easements may have on subsequent purchasers of the dominant and servient tenements. We have noted that easements are proprietary; thus, the benefit of the easement is capable of running with the dominant tenement, and may be enforced by any owner for the time being of an estate in that tenement; and the burden of the easement is capable of running with the servient tenement, and may be enforced against any owner for the time being of an estate in that tenement.48 However, as with other interests in land, whether an easement does in fact run with the land depends crucially on its legal or equitable status and the mechanics of the systems of registered and unregistered title. In practice, it is usually a potential purchaser of the servient tenement that is most concerned with this issue, simply because it is they who will have to allow the dominant tenement owner to exercise the easement. After all, the existence of a binding easement may well affect a purchaser’s view of the desirability or value of the servient land.

45In this context then, the distinction between legal and equitable easements will disappear.

46Prior to the entry into force of the 1989 Act, easements could be created by oral contract if supported by ‘acts of part performance’ under section 40 of the LPA 1925, as in Thatcher v. Douglas (1996). Section 40 is now repealed and mere oral contracts (i.e. where no estoppel is involved) cannot create equitable rights.

47See Chapter 9.

48Note also that persons present on the servient land with no estate – such as adverse possessors and licensees – can be compelled to permit enjoyment of the easement (though they cannot create one) precisely because the easement binds the land, not simply the people occupying it.

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7.6.1 Registered land

With regard to registered land, the benefit of an easement becomes part of the dominant tenement and automatically passes to a purchaser or transferee of it. This is so whether the easement is legal or equitable. In fact, in practice, the register of title of a dominant tenement often may note the existence of the benefit of a legal easement and under the Land Registration Act (LRA) 2002, if at the time the easement is expressly created the dominant land comprises a registered estate, the benefit of an expressly created easement must be noted on the register of title of the dominant land.49 However, this will occur automatically as a result of the conveyancing transaction in which the easement is expressly created and thus ensures for the most part that purchasers of benefited land are aware of the easements that exist for the benefit of the land they are purchasing.50

By way of contrast, the position in respect of the servient land is more complicated and depends on whether the easement is legal or equitable and whether it was expressly or impliedly granted and on the application of the LRA 2002. However, in all cases we must remember that should the easement fail to be protected in the appropriate manner, then a purchaser of the servient land will take the servient land free from the easement and so cannot be required to permit its exercise by the dominant owner.51

7.6.1.1Legal easements in existence before 13 October 2003 (the date of entry in to force of the LRA 2002)

The great majority of these legal easements will be registered against the title of the servient land (because of the way they were created) and will, therefore, be binding against a subsequent purchaser of it. However, those legal easements created before first registration of title, or which are not registered because they were impliedly created before the entry into force of the LRA 2002, qualified as overriding easements under the LRA 1925.52 They continue to qualify as interests which override under the LRA 2002 and thus bind the servient land automatically.53

49Schedule 2 of the LRA 2002.

50If the benefit is not noted on the title – perhaps because it was impliedly granted or predated the LRA 2002 – the person entitled to the benefit of the easement in respect of his dominant tenement may apply to have that benefit noted on his title (Land Registration Rules 2003, Rules 73 and 74).

51Section 29 of the LRA 2002. If the transferee of the servient land is not a purchaser, the transferee is bound by the easement whether appropriately protected or not (section 28 of the LRA 2002).

52Under the old section 70(1)(a) of the LRA 1925.

53Schedule 12, paragraph 9 of the LRA 2002. Such easements may be brought onto the register of title in due course when a person makes an application to register a disposition of a registered estate by reason of the duty to disclose such interests under section 71 of the LRA 2002. They will then bind by reason of their registration.

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7.6.1.2 Legal easements in existence at first registration of title

These legal easements, whenever created and whether arising expressly or impliedly, qualify as interests which override under Schedule 1, paragraph 3 of the LRA 2002. Consequently, they bind the servient land automatically. This is as it should be, because such easements would have bound the applicant for first registration immediately before such an application.54 However, such easements are likely to be brought on to the register of title in due course when the first registered proprietor disposes of the land because the new owner is under a duty to disclose such interests by reason of section 71 of the LRA 2002. If registered as a result of this disclosure, they will then bind by reason of their registration.55

7.6.1.3Legal easements expressly created over a registered estate on or after 13 October 2003

Under sections 25, 27 and Schedule 2 of the LRA 2002, a legal easement expressly created on or after the entry into force of the Act does not actually qualify as a legal interest unless and until it is entered against the title of the servient land.56 Thus, for these easements, both their status as a legal interest and their ability to bind a purchaser of the servient land depends on their registration. In fact, this will occur as a matter of course if the easement is created during a conveyance of a registered estate, although it will require a deliberate act of registration if the easement is contained in a deed of grant not tied to a sale or transfer of land.57 Under this provision, the great majority of expressly granted easements will take effect as legal interests binding the servient land. However, failure to register when required means that the easement can qualify only as an equitable interest.58

7.6.1.4Legal easements impliedly created over a registered estate or where the servient land is not a registered estate,59 on or after 13 October 2003

These legal easements cannot be registered automatically against the servient land either because they are created impliedly and thus the conveyance contains no express mention of them which would trigger their registration, or because the servient land is carved out of a registered estate but is not itself

54Because ‘legal rights bind the whole world’ in unregistered conveyancing.

55If they are not disclosed and registered, they remain as overriding interests.

56If the dominant land is also registered, the benefit should be entered against the dominant title also.

57For example, where two existing neighbours agree to grant mutual easements to each other.

58Section 27(1) of the LRA 2002.

59For example, in the rare case where the servient estate is a lease for seven years or less – this is not registrable with its own title.

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a registered estate and so there is no registered title that can be burdened. For practical purposes, this means legal easements created by reason of prescription, necessity, common intention, the rule in Wheeldon v. Burrows, under section 62 of the LPA 1925,60 or where the easement (however created) takes effect over a lease for seven years or less. In all of these cases, the legal easement will be protected as an overriding interest only if it falls within the complex provisions of Schedule 3, paragraph 3 of the LRA 2002. If it does not so fall within Schedule 3, it will not override and will not bind a purchaser of the servient title unless it has otherwise been entered on the register.61 As discussed in Chapter 2, Schedule 3 paragraph 3 is not the easiest statutory provision to understand, but in essence it stipulates that a legal easement of this type (i.e. impliedly granted or taking effect over a non-registered estate) will take effect as an overriding interest if, but only if:

●it is registered under the Commons Registration Act 1965; or

●it would have been obvious on a reasonably careful inspection of the land; or

●it was known about the purchaser of the servient land; or

●it was used within one year immediately prior to the transfer in question.

Clearly, the point of these provisions is to give the purchaser of the servient land every opportunity of discovering the easement before he buys the land while at the same time seeking to preserve the overriding status of those important easements which, even though undiscoverable, are actually used for benefit the dominant land. In fact, in practice it is difficult to imagine how any legal easement could fail to qualify as an overriding interest under this wide-ranging provision and at this early stage in the life of the LRA 2002, we might venture the tentative conclusion that all legal easements in principle falling within the Schedule (i.e. impliedly granted or over an unregistered estate) will qualify as overriding despite the obvious intention that some at least should be excluded. Once again, many of these easements are likely to be brought onto the register of title in due course when the registered proprietor disposes of the land because the new owner is under a duty to disclose such interests by reason of section 71 of the LRA 2002. If so registered, they will then bind by reason of their registration.

7.6.1.5 Equitable easements that were overriding prior to 13 October 2003

The original scheme of the LRA 1925 envisaged that the great majority of equitable easements (if not all) would need to be registered if they were to

60These cases of implied grant are considered below.

61They would, of course, bind a non-purchaser (section 28 of the LRA 2002).

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