the extent of an easement depends on its mode of creation. it it is created by epress grant, its extent is dependent upon the proper construction of the grant in the light of the surrounding circumstances ; if by implied grant
it is deendent upon the original parties’ intentions and if by prescription it is depepdent upon the user i e the use pf te land which the claiamnt has established in his favour. although there are a fair number of cases on this topic it is not conceptually difficult
apart from by statute , easements may be extinguished either by i unity of possession and ownership or by ii release. the former method deprives form the principle that the dominant and servient owner should be different persons. the latter amy be expressed or implied ; for an expresse release a deed is required at law whereas release will be implied where the dominant owner has abandoned the exercise of the right with the clear intention to rlease it – 20 years non use is generally sufficienr raise the presumption of abandonment – courts were traditionally eager to presume an intention to abandonw ehre an easemn had been unused for 20 years without explanation but it now now clear that only a very simple explanation is need for no use
courts are reluctant to presume abandonment and now recognise that a dominant owner is not likely to abandon such a vlaublae property rigt which ight be most useful in the future
benn v hardinge 1992
the court of appeal refused to presume an intention to abandon a right of way which had gone unused for 175 years after the dominant owner explained that throughout that period there had been an alternative means of access to the land
it appears that aS A AMTTER Of common sense an easement will cease to exist when it no longer benefits the dominant land but the test ot be satrsified is a stryc one
huckvale v aegean hotels 1989
where ;lsad lj stated
”in the absnece of proof of abandonment the corut whsould be low to hold tha na esment has been extinguished by frustration unless the evidence shows clearly yht because of a change of circumstances dince the date of the rignal grant there is no practical possibility of its ever agains benefitting the dominant tenement in the manner contemplated by that grant.”
wall v collins 2007 it was held that when a leasehd old a freehold Esta were merged it dd not gave the effect of extinguishing a right of way that hd been attached to the leasehold interest.
an easement had to be appurtenant to a dominant tenement ut it necessaril to a y praticualr interers for the tie ebing
after merge of te leasehold and freehold the domain t tenement remained ucnagged and there as no legal impediment to the contued enjoyment of the easement by the occupier for the time ebiugn that tenement
the decision was aaklsi deals with the creation fir wasmenrt ci SWCTION sixty two fo the LPA 1925 and the extent to WHIch right of way may e exercise fvoer land which was not originally part of the dimanent tenement
in kebnt v kavanagh was also applied
RUNNING WITH THE LAND
although easements are proprietary rightsm this does not mean that they will automatically be enforceable by third parties such as purchasers of the dominant and servient land
the BENEFIT of a easement will be enforceable by the purchaser of the dominant land since it is a proprietary right not a personal one
but the BURDEN of an easement will only run with the land if the criteria discussed below are followed.
it is thus not enough to consider whether an easement has been validly created since ts burden will only bind future owners of the land to which it relates if it has the characteristic of ”running with the land/”
it is important to know whether an easement is legal of equitable since there are separate rules for each and since equitable easements should be protected by registration . it is convenient to consider the categories separately.
REGISTERED LAND BEFORE L.R.A. 2002
this is for comparison. 1925 LRA has been repealed.
the benefit of an easement automativall passed to a purchaser or transferee of the dominant tenement.
UNDER LRA 2002
note the transitional provisions which applied until 13 oct 2006 and protected as overriding interest all existing easements and profits where they affected a registerwd title wether the easement was equitable or legal.
it is likely after the transitional privisions came to an ened in 2006 some easements ceased to exist since they were no longer overriding and had not been protected on the register
the position is now that on first registration schedule 1 para 3 provides that all legal easements are interests that override a first registration of the servient tenement
thus legal easements will bind the first registered proprietor and all subsequent transferees of the servient tenement. where legal easements are expressly created after first registration they must have been entered on the register in order to exist, and once registered will bind all transferees of the servient tenement
impliedly created legal easements MAY override under schedule 3 para 3 if they are either known to or reasonable discoverable by the purchaser or have been sued within a year before the purchase of the land
schedule 3 para 3 refers only to legal easements and legal profits. thus new equitable easements no longer override a subsequent purchase – celsteel reversed – they must be protected by a notice on the register.
eventually expressly created easements will only exist once registered electronically.
THE benefit of both legal and equitable easements will automatically pass to a purchaser of the dominant tenement, in the same way as in registered land
again un relation to the burden different rules apply to legal and equitable easements
————– legal easements ”bind the whole world ” because they are legal rights and so are binding upon a purchaser of the servient tenements
———————– equitable easements must be registered as class D iii land charges under the LCA 1972 if they Are to bind a subsequent purchaser for the money or money;s worth of the servient tenement ,
the exception to this rule is equitable easements created by proprietary estoppel; see lord dennings speech in ives v hugh 1967
such easements unfortunately use the doctrine of notice and so will bind all transferees of the servient tenement expect a bona fide purchaser for value of a legal estate in the servient tenement who has no notice of the easement
EFFECT OF THE LAND REGISTRATION ACT 2002
although the enforceability of easements in registered land has been explained above, some further points are worth making and the importance of a few should be reinforced
under LRA 2002 easements created by electronic deed will be legal easements and those created by electronic written contracts will be equitable.
further once electronically conveyancing is operational expressly created easements will not exist until entered electronically on the register of the servient land
so it will eventually be impossible to create easements in registered land at all expect electronically.
first registration takes effect subject to any legal easement or profit a prendre LRA 2002 schedule 1 para 3
it does not matter whether the easement was created formally by informal grant or by prescription
but unregistered rights should be disclosed on first registration and protected by a noitce
————–overriding status can no longer be claimed for any easement created out of regustered title after 13 october 2013 since only legal rights override and legal status is itself dependent upon registration LRA 2002 and schedule 2 para 7
——————– but implied easements will override even though they can only be detected via their use
————————– undiscoverable easements will no longer override a transfer
—————————— there was a transitional provisions for equitable easements which thus remained overriding for three years from 13 october 2013 ; they do not require registration but the three year period was intended to allow this to occur. but it was likely that some unprotected easements will have disappeared in october 2006 when the transitional provisions ended since equitable easement no longer override
PROFITS A PRENDRE.
a profit is a proprietary right to enter the land of another and to take produce of that land such as crops, timber fish or turf, legal or equitable.
in registered land all prifts all overriding interests nd under the LRA 2002
legal profits can be registered with their own title. a distinction between profits and easement as stated abovei that profits can exist in gross
ie they may bind servient land even if the person with the benefit does not own any land. profits can be created in much the same ways as easements. detailed considerations of this is not in the course