Extent and extinguishment of easements


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



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.



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.



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



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

note also

————–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



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



About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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