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Modern Land Law

bind a purchaser of the servient tenement. However, according to Celsteel v. Alton (1986), as followed by the Court of Appeal in Thatcher v. Douglas (1996), equitable easements which were ‘openly exercised and enjoyed’ within the meaning of the old Rule 258 of the Land Registration Rules qualified as overriding interests under section 70(1)(a) of the 1925 Act. Where such easements did qualify as overriding because of this provision, they will continue to override under the LRA 2002.62 Although there is no doubt that this interpretation of the 1925 Act subverted the registration system, the LRA 2002 cannot remove the overriding status of those equitable easements which did qualify and so the anomaly must remain. However in reality, cases are likely to be few and far between.

7.6.1.6 Equitable easements at first registration of title

Immediately prior to first registration of title, the land is (of course) unregistered. An equitable easement will be binding on the owner of the unregistered servient land (assuming they were a purchaser and not the grantor) only if it is registered as a class D(iii) land charge under the Land Charges Act 1972. If it is so registered, its registration will be transferred to the register of title of the servient land when the servient land is first registered. If it is not so registered, it could not have bound the owner of the servient land (assuming he was a purchaser for money of money’s worth of a legal estate63) and so should not bind at first registration of title. After all, the first registered proprietor was the previous owner of the unregistered estate and the mere act of registration cannot make him bound by something that he was not previously bound by. Thus, equitable easements at first registration are not interests which override and can bind the new registered proprietor only if they are entered on the register of title by reason of a transfer of a previous entry as a land charge in unregistered conveyancing.64

7.6.1.7 Equitable easements and dealings with land already registered

The rationale of the LRA 2002 is to bring as many rights onto the register as possible. Consistently with this, equitable easements cannot qualify as interests which override under Schedule 3 of the Act. Paragraph 3 of Schedule 3 is limited to certain types of legal easement and it is most unlikely that an equitable easement could qualify as an overriding interest by reason of ‘ discoverable

62Schedule 12, paragraph 10 of the LRA 2002.

63If the servient owner created the easement himself, he will be bound to respect it in favour of the grantee irrespective of registration.

64It is most unlikely that an equitable easement could qualify as an overriding interest by reason of ‘actual occupation’ because, by definition, the dominant owner merely uses the servient land, he is not in actual occupation of it.

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actual occupation’ within paragraph 2 of the Schedule because, by definition, the dominant owner merely uses the servient land, he is not in actual occupation of it. Consequently if equitable easements are to survive a transfer of the servient land to a purchaser, they must be protected by means of either an Agreed or Unilateral Notice on the register of title of the servient land. Failure to so register makes them unenforceable against a purchaser (section 29 of the LRA 2002), although they would be enforceable against a non-purchaser, such as a donee of a gift or a devisee under a will (section 28 of the LRA 2002).

At this point, because of the complex nature of the provisions concerning easements under the LRA 2002, a summary may helpful:

1All easements (legal or equitable) which were overriding before the entry into force of the LRA 2002 continue to be overriding.

2All legal easements expressly or impliedly granted will override a first registration.

3Legal easements expressly granted over a registered estate after the entry into force of the LRA 2002 must be entered on the register to exist at law and so cannot be overriding. In fact, they are protected by such entry and binding for this reason.

4Impliedly granted legal easements and legal easements over an unregistered estate carved out of registered land created after entry into force of the LRA 2002 will override against a purchaser provided they are either known to the purchaser, or are patent on a reasonably careful inspection of the servient land, or have been exercised within one year before the sale to the purchaser, or are entered (if permitted) on the special register maintained under the Commons Registration Act 1965.

5Equitable easements will not override at first registration but will bind only if registered as a land charge in unregistered land

and such registration is transferred to the register of title of the servient land.

6Equitable easements will not override a purchaser of an already registered title (provided they did not override under the old LRA 1925, being in existence before 13 October 2002) and so must be protected by the entry of a Notice in order to bind a purchaser of the servient land.

7Non-purchasers of a registered title take the land subject to all pre-existing easements, whether overriding or registered or neither.

7.6.2 Unregistered land

With regard to unregistered land, the benefit of both legal and equitable easements becomes part of the dominant tenement and automatically passes to

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a purchaser of it. The position is similar to that in registered land. Once again, questions concerning the burden of the easement are best considered by separating legal and equitable easements. Note, however, that these rules will determine whether the purchaser of the servient land is bound by the easement immediately prior to compulsory first registration of title following the purchaser’s acquisition of the land. At first registration, the effect of the easement is determined by the LRA 2002, although in reality those provisions effectively ensure that a purchaser of servient unregistered land is bound (or not bound as the case may be) at first registration in the same manner as when they purchased the estate.

7.6.2.1 Legal easements

As with all legal rights in unregistered land (except the puisne mortgage: see Chapter 3), legal easements ‘bind the whole world’. They are automatically binding on a purchaser (or other transferee65) of the servient land, who must allow the owner of the dominant tenement to exercise it.

7.6.2.2 Equitable easements

Most equitable easements are class D(iii) land charges under the Land Charges Act 1972. As such, they must be registered in order to bind a subsequent purchaser for money or money’s worth of a legal estate in the land. If they are not registered as a class D(iii) land charge, they will be void against such a purchaser, but will remain enforceable against others; for example, a squatter or person inheriting under a will.66 The single exception to this need to register may be equitable easements created by proprietary estoppel. According to Lord Denning in Ives v. High (1967), equitable easements created by estoppel are not within the statutory definition of class D(iii) land charges, apparently because that category includes only those equitable easements which could once have been legal but are rendered equitable by the 1925 legislation. Estoppel easements are, of course, purely equitable, and always will be. Therefore, equitable estoppel easements will be binding against a purchaser of the servient land according to the old ‘doctrine of notice’. This means that an equitable estoppel easement will be valid against everyone except a bona fide purchaser for value of a legal estate in the servient land who has no notice (actual or constructive) of the easement.67

65For example, a person inheriting under a will.

66See generally Midland Bank v. Green (1981).

67But it would not bind at first registration without an entry being made against the title by means of a Notice.

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7.7 The creation of easements

We have noted above that currently there are various ways in which a legal or equitable easement may come into existence.68 To sum up, they are: by statute (legal easement); by prescription (legal easement); by deed or registered disposition (legal easement); by a specifically enforceable written contract, not amounting to a deed or registered disposition (equitable easement); and by estoppel (equitable easement). The creation of easements by statute for particular and special circumstances need not be considered in any detail, and prescription is considered in section 7.10. The operation of the doctrine of proprietary estoppel is considered in Chapter 9, where it will be seen that it is a general doctrine under which the emergence of an easement is only one way that a court might choose to ‘satisfy’ the estoppel. It is best considered separately. The following section therefore considers the creation of easements by deed, registered disposition or by written contract. However, although the use of one of these three methods of creating an easement may give rise to a different quality of easement (i.e. a legal or equitable easement), it should be appreciated that all three ‘methods’ will operate against the same factual background. Whether the parties to a transaction choose, or are required to use, a deed, a registered disposition or a written contract to carry out their intentions will depend on the nature of the land (unregistered or registered) and their own appreciation of the needs of the situation at the time. What is important, therefore, is to analyse the factual scenarios in which easements may be created, and only after that ascribe a legal or equitable status to the easement thereby created according to the actual method used by the parties. To put it another way, these three methods of creating easements (deed, registered disposition and written contract) simply reflect the level of formality used by the parties; they are not intrinsically different. What is important is the different factual situations (excluding statute, prescription and estoppel) in which easements may be created. These are described immediately below.

7.8 Express creation

Easements may be created expressly, either by express grant or express reservation.

7.8.1 Express grant

An easement is expressly granted when the owner of the potential servient tenement gives (i.e. grants) an easement over that land to the owner of what will become the dominant tenement. This may occur in two principal ways.

68 This will change under e-conveyancing.

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1First, where the servient and dominant tenements are already in separate ownership and the servient tenement owner grants an easement over his land to his neighbour. For example, A grants B (a neighbouring landowner) a right of way over A’s land in return for a one-off payment, or simply to be neighbourly. This is relatively uncommon,69 but might occur when a landowner proposes to change the use of his or her land and requires an easement over a neighbour’s land in order to accomplish it.70 If the grant is by deed or registered disposition71 (as the case may be for unregistered or registered land), the easement will be legal, and if it is by enforceable written contract, the easement will be equitable.

2Second, where land is owned by a potential servient owner and he then sells or leases a piece of that land to another, the potential servient owner (and seller) may include in that sale/lease a grant of an easement to the purchaser. The land remaining in the seller’s possession becomes the servient tenement and the piece sold/leased becomes the dominant tenement. The seller has granted an easement over his own land along with the sale/lease of the dominant part and the easement is mentioned expressly in the conveyance of the dominant part to the purchaser. If that conveyance is by deed or registered disposition (as the case may be), the easement is legal;72 if the transfer is by written contract, the easement is equitable. An example is where a person sells part of his land and includes in that sale the right to lay water pipes under his retained land for the benefit of the part sold: an easement has been expressly granted. This is a very common way of easements being created, an example being Hillman v. Rogers (1998) which concerned an easement to cross a road at a defined point.

7.8.2 Express reservation

An easement is expressly reserved when the owner of the potential dominant tenement keeps (i.e. reserves) an easement for the benefit of the land kept, operating over other land. In practice, this is the opposite of express grant by sale or lease, considered above. For example, where land is owned by the potential dominant owner, and he then sells or leases a piece of that land to another, the potential dominant owner may include in that sale/lease a reservation of an

69See CP Holdings v. Dugdale (1998) for an example.

70For example, the building of an extension might require an easement of drainage through pipes over a neighbour’s land.

71Plus registration as required in registered land.

72Plus registration as required in registered land.

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easement for himself. The land remaining with the seller becomes the dominant tenement, and the piece sold/leased becomes the servient tenement. The seller has reserved an easement for the benefit of his own land in the sale/lease and the easement is expressly reserved in the transfer of the servient part to the purchaser. If that conveyance is by deed or registered disposition (as the case may be), the easement is legal; if the transfer is by written contract, the easement is equitable. An example is where a person sells part of his land to a builder, but reserves a right of way over the land sold: an easement of way has been expressly reserved. Note, however, that there is a general rule that a seller must not derogate from his conveyance.73 Consequently, any attempt to preserve for oneself a right over the land conveyed to another must be clearly and unequivocally expressed.

7.9 Implied creation

The above section dealt with the express creation of easements, either by grant from the owner of land on a sale/lease of part of it, or by reservation of an easement by that person for the benefit of his retained land. In either case, the point is that the easement is expressly mentioned in the transfer of the dominant tenement (grant) or servient tenement (reservation). Furthermore, the easement is legal or equitable depending on whether the transfer of the land is by deed/registered disposition, or specifically enforceable written contract. It may happen, however, that a transfer of land does not expressly mention an easement, even though this would have been expected or desirable in the circumstances. What if, for example, a seller of part of land meant to grant an easement of way to a purchaser or to keep an easement of drainage for himself but the conveyance was silent. In some of these situations, an easement can be implied into a transfer of the relevant land, so creating an easement in a similar manner as if it had been expressly created. These situations are noted below, and again encompass situations of implied grant and implied reservation. In either case, however, if the easement is implied into a deed/registered disposition, the easement will be legal, and if it is implied into a specifically enforceable written contract, it will be equitable. The easement takes the character of the document into which it is implied.74

7.9.1 Implied by necessity: grant and reservation

An easement may be impliedly granted, and occasionally impliedly reserved, because of necessity. The most common example is where the land sold (grant)

73For an example, see Donnington Park Leisure v. Wheatcroft (2006).

74Note, however, that impliedly created legal easements operate differently under the LRA 2002 to those that are expressly created; see above in respect to registration requirements and overriding status.

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or land retained (reservation) would be useless without the existence of an easement in its favour. Although the implication of an easement by necessity can be prevented by clear words in the relevant conveyance, the courts will not readily reach such a conclusion.75

7.9.1.1 Grant

Although it is perfectly possible for any type of easement to be implied into a conveyance for reasons of necessity, easements of necessity arise most frequently in connection with easements of way or light. So, if A sells part of his land to B, but it is impossible for B to gain access to his new land without walking over the land retained by A, an easement of way by necessity will be impliedly granted in favour of B’s land over A’s retained land; that is, the grant of an easement will be implied into the transfer of the dominant part to B. Another example is provided by Wong v. Beaumont (1965), where an easement of ventilation by necessity was held to exist when the land sold to the purchaser was intended to be used as a restaurant, but could not be so used without an easement permitting a ventilation shaft to be constructed over the land retained by the seller.76 Generally, it is easier to claim an implied grant of an easement of necessity than it is an implied reservation but, in all cases, as Re MRA Engineering (1988) shows, a real necessity must exist. We are considering easements of necessity, not of convenience. So, in Manjang v. Drammeh (1990), 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. This is similar to Re MRA Engineering (1988), where access to the land by foot was possible, and so excluded an alleged implied easement of way by reason of necessity for vehicles.

7.9.1.2 Reservation

Again, using an easement of way as an example, if A sells part of his land to B, but it is impossible for A to gain access to the land he has retained without walking over the land sold to B, an easement of way by necessity can be said to be impliedly reserved in A’s favour; that is, the reservation of the easement will be implied on the occasion of the transfer of the servient part to B.77 Note, however, that the reservation of easements by necessity will happen only rarely because it must be clear that the land retained by the seller would be

75Hillman v. Rogers (1998).

76It is uncertain whether this situation is more properly to be regarded as an example of an easement granted by reason of common intention.

77Pinnington v. Galland (1853).

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unusable without the easement claimed. For example, no easement of way will be allowed where it is merely inconvenient to use another route, as in Re Dodd (1843), although recently in Sweet v. Sommer78 an easement of way was impliedly reserved because the alternative access could be achieved only by the destruction of a physical barrier that both seller and purchaser agreed had to remain in place. Sommer is, perhaps, one of the more generous applications of this doctrine and the court adopted a slightly less rigid concept of ‘necessity’ than had been apparent previously. Indeed, we must remember the alleged dominant tenement owner (i.e. the seller) had it in his power expressly to reserve an easement when he sold part of his land. Consequently, the law ‘leans against’ the seller, and he will have to discharge a heavy burden of proof before the court will agree that an easement of necessity should be impliedly reserved in his favour.

7.9.2 Implied by common intention: grant and reservation

Easements may be impliedly incorporated into sales of land, either in favour of the purchaser (grant), or in favour of the seller (reservation), if this is required to give effect to the common intention of the parties. The result of such a doctrine is identical to the implied grant and reservation of easements by necessity, considered above, except that the easement does not have to be necessary for the use of the land, merely in the joint contemplation of the seller and purchaser at the time of the sale (Pwllbach Colliery v. Woodman (1915)). Clearly, the acceptance of such a doctrine facilitates the implied creation of easements in a much wider range of circumstances than that of ‘necessity’. Indeed, it appears that all that is required is proof that the intended (but omitted) easement was in the contemplation of both parties when the land was sold. In fact, those cases commonly cited as examples of ‘common intention’ may perhaps be justified on a pure necessity basis79 and there are precious few examples of the creation of easements on this basis in practice. Nevertheless, despite these doubts, the case of Stafford v. Lee (1993) in the Court of Appeal does apply Pwllbach on a clear ‘common intention’ approach. According to Nourse LJ, in Stafford, an easement by common intention can exist if there was a common intention between seller and purchaser as to some definite user of the land, and if the easement is necessary to give effect to that intention. So, in Stafford, the plaintiff (the 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 plaintiff by the defendant with a view to the construction of a house, an easement

78[2004] EWHC 1504.

79Assuming that ‘necessity’ is not interpreted narrowly. See Wong v. Beaumont (1965).

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of way for the purpose of construction was held to have been granted. Similarly, in the admittedly exceptional case of Peckham v. Ellison (1998), an easement of way was held to be impliedly reserved in favour of the seller on the basis of common intention. Despite these examples, however, it is clear that the implied creation of easements by way of common intention is not lightly to be presumed, the more so in cases where it is alleged to be reserved in favour of the seller. So in Chaffe v. Kingsley (1999), the Court of Appeal refused to impliedly reserve an easement by way of common intention, distinguishing Peckham on the ground that the alleged easement in its case was too unspecific and imprecise to justify such a step. It seems then that implied creation by reason of common intention is possible, but not always permissible. After all, we must not forget that if the alleged easement was so crucial to the parties’ common intention, why was it not expressly inserted in the relevant conveyance?

7.9.3Easements implied under the rule in Wheeldon v. Burrows: grant only

The rule in Wheeldon v. Burrows (1879) may appear complicated at first, but it is only a variant of the situation considered above where a person sells/ leases part of his land and thereby grants to the purchaser an easement for the benefit of the part sold, burdening the part retained. The difference is that, under Wheeldon, the easement is not expressly granted, but is deemed to be implied into the sale of the land. Note, however, that easements may only be granted by this method, that is, granted for the benefit of the land sold to the purchaser (which becomes the dominant tenement), to take effect over the land retained by the seller (which becomes the servient tenement). The rule in Wheeldon may not be used to impliedly reserve an easement for the benefit of the land retained.80

The rule in Wheeldon provides that, where a person transfers part of his land to another, that transfer impliedly includes the grant of all rights in the nature of easements (called ‘quasi-easements’) which the seller enjoyed and used prior to the transfer for the benefit of the part transferred, providing that those rights are either ‘continuous and apparent’ and/or ‘reasonably necessary’ for the enjoyment of the part transferred. As we know, no easement can exist where the dominant and the servient tenement are owned and occupied by the same person. However, it often happens that a landowner will use one part of his land for the benefit of another, as where a landowner walks across a field to get to his house. These are so-called ‘quasi-easements’, because they would have been easements had the plots been in different ownership

80 Confirmed in Peckham v. Ellison (1998).

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or possession. Thus, under the rule in Wheeldon, if the owner of the entire plot of land sells or leases the ‘quasi-dominant’ part of his land to another (being the land benefited by the right; in our example, the house), the purchaser is taken to have been impliedly granted the right previously used for the benefit of that part (in our case, a right of way over the retained field). The purchaser’s land then truly becomes the dominant tenement, and the land retained by the seller (in our example, the field) is truly now the servient tenement. Clearly, this is a remarkable rule for it might operate unexpectedly to impose a proprietary burden on the land retained by a seller simply because he made use of that land for the everyday benefit of the part he has just sold or leased. It is no surprise, therefore, that this potentially injurious rule is subject to a number of conditions.

1First, the rule can be expressly excluded, as where a seller stipulates that the only easements granted to the purchaser are those expressly provided for in the sale or lease. This is a most important point and it is standard conveyancing practice to exclude the implied grant of easements when an owner sells or leases part of their land. However, as Millman v. Ellis (1996) shows, the exclusion of the rule in Wheeldon must be clear and the express grant of a lesser (but similar) easement does not exclude the implied grant

of a wider easement. So, in that case, the express grant of an easement of way over a road did not exclude the implied grant, under Wheeldon, of an associated easement of way over an adjoining lay-by. Likewise, in Hillman v. Rogers (1998), the express grant of an easement to cross a road did not exclude the implied grant of a right of way over the road under Wheeldon. It is apparent then that the clearest words should be used to exclude the rule for there is no certainty that a court would agree that it has been excluded simply because the conveyance contains complimentary express easements.

2Second, only those rights that are capable of being easements within the Ellenborough criteria may become easements by operation of the Wheeldon rule. This is self-evident. If a right is not capable of amounting to an easement, it is irrelevant how it is created. Such a non-proprietary right will be a licence.

3Third, the rule applies to those quasi-easements that are used by the owner of the whole land for the benefit of the part sold before the lease or sale of the alleged dominant part. It does not appear to be enough that some other person used the quasi-easement, save only if this other person can be regarded as the original owner’s agent or alter ego. So, if the owner of land always flew by helicopter to his house, but all visitors approached the house by walking across his adjoining field, it is debatable whether sale of the house to a third

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