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The College of Estate Management 2013

Paper 2890V11-0

Easements

Contents
Learning outcomes
1. Definitions and issues
2. Characteristics of an easement
2.1 Dominant and servient tenement
2.2 The easement must accommodate the dominant tenement
2.3 Diversity of ownership
2.4 Capable of forming the subject matter of a grant
2.5 Examples
2.6 Other rights
3. Legal and equitable easements
3.1 Legal easements
3.2 Equitable easements
4. Acquisition of easements
4.1 By statute
4.2 Express grant or reservation
4.3 Implied grant or reservation
4.4 Prescription (i.e. presumed grant)
5. Specific easements
5.1 Rights of way
5.2 Rights of light
6. Interference with easements
7. Extinguishment of easements
8. Profits prendre
8.1 Definition
8.2 Types
8.3 Acquisition
8.4 Examples
Summary

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Learning outcomes
After studying this paper you should be able to:

define easement, dominant tenement and servient tenement;

state the difference between positive and negative easements and give
examples of each;

describe the characteristics of an easement and how these distinguish it from


other rights;

distinguish between legal and equitable easements;

describe and understand the various ways in which an easement may be


acquired;

explain the effect of interference with an easement;

outline the ways in which an easement can be extinguished;

state the nature and types of profits prendre and how they may be acquired.

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1 Definitions and issues


An easement is a right enjoyed by one landowner over the land of another.
The land which has the benefit of the right is known as the dominant tenement and
the land which bears the burden of the right is known as the servient tenement.
An easement may be either positive or negative:

A positive easement gives the owner of the dominant tenement the right to do
something on the servient tenement; for example, the right to walk across it or
to erect a sign there.

A negative easement gives the dominant owner the right to restrict the servient
owners use of his land; for example, a right of light will prevent him from
building on his land so as to obstruct the flow of light to the dominant land.

The legal issues which arise are:

Is the right claimed an easement?


Has an easement been acquired by one of the four ways laid down by the law?
What is the effect of interference with an easement?
How may an easement come to an end?

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2 Characteristics of an easement
The characteristics of an easement have been authoritatively laid down by the Court
of Appeal in the leading case of Re Ellenborough Park (1956):

There must be a dominant and a servient tenement.


The easement must accommodate the dominant tenement.
The dominant and servient owners must be different persons.
The right claimed must be capable of forming the subject matter of a grant.

2.1 Dominant and servient tenement


That is, there must be land which has the benefit of the right (the dominant tenement)
and land which is subject to the burden of the right (the servient land).
For example, A, the owner of Blackacre, claims a right of way over his neighbours
land, Whiteacre. Blackacre is the dominant tenement. Whiteacre is the servient
tenement.
An easement benefits land; it only exists in respect of land. It is part and parcel of the
dominant land and passes automatically on a conveyance of it. Thus, on a sale of
Blackacre, the right of way across Whiteacre passes with the land.

2.2 The easement must accommodate the dominant tenement


To be an easement, the right claimed must be of benefit to the dominant land. There
must be a clear connection between the enjoyment of the right and the enjoyment of
the dominant land.
It has been said that a right of way over land in Northumberland cannot
accommodate land in Kent per Willes J, Bailey v. Stephens (1862). The reason is
that it is not possible to show the necessary connection between enjoyment of the
right and enjoyment of the dominant land. In fact, dominant and servient properties
will usually be adjoining, but the further apart they are, the less easy it will be to
establish the necessary connection.
In Re Ellenborough Park the court held that the right to use a park adjacent to a group
of houses was an easement attaching to those houses. It was the communal garden of
the neighbouring houses, therefore the necessary connection between enjoyment of
the right and enjoyment of the land was shown.
In contrast, as stated as an example in Re Ellenborough Park, a right given to the
purchaser of a house to visit Lords Cricket Ground without payment is not an
easement, for while it would be an advantage to the purchaser, it would be completely
unconnected with the enjoyment of the house as a house.
In Beech v. Kennerley (2012), when part of land was sold for a building plot, a right
of way was reserved over a path on the building plot to allow the tenant of the
retained land to reach a kitchen garden on the plot. The Court of Appeal decided that
this was not an easement. The right was reserved just to benefit the tenant personally.
The courts have been prepared to hold that a right which primarily benefits a business
carried on the land may be an easement; though it may be that it is necessary to find a
close connection between the property and the business carried on there. For example,
in Moody v. Steggles (1879), the right to hang an inn sign from adjoining property
was held to accommodate a public house.

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It is a matter of fact in each case. In Hill v. Tupper (1863) the tenant of part of a canal
bank was given the right to hire out pleasure boats on the canal. The court decided
that this was not an easement as the right benefited Hill personally and his business
rather than the land he occupied.

2.3 Diversity of ownership


The dominant and servient owners must be different persons. An easement is a right
over someone elses land. This should be contrasted with a quasi-easement. This is a
right which a person has over his own land which, if the land was not his own, could
only be exercised by the existence of an easement.
EXAMPLE

If Farmer Giles owns two adjoining fields, Blackacre and Whiteacre, and access to
Blackacre is via a path over Whiteacre, his use of the path is a quasi-easement, not an
easement, because he owns both fields.

Note: Ownership relates to diversity of estates. So it is possible for a freeholder to


grant his tenant an easement over land retained by the freeholder landlord.
In Kent v. Kavanagh (2006), where tenants of the same freeholder landlord
subsequently acquired the freeholds of their properties (the process known as
enfranchisement), they enjoyed the same reciprocal rights of their (now) freehold
properties as they had under the leases. The easements benefited and burdened the
newly enfranchised estates.

2.4 Capable of forming the subject matter of a grant


The right claimed must be one which could be formulated in a deed of grant between
a capable grantor and capable grantee.
In particular:

The right claimed must not be of too wide and vague a character,
otherwise it would be difficult to describe it precisely in a grant.
For example, a right to a view over a neighbours open land cannot exist as an
easement (Aldreds Case (1610)); nor can a general right to light or air for
ones land. A right to light or air can only exist in respect of a defined aperture,
thus allowing the right to be defined with precision.
In Phipps v. Pears (1965), the Court of Appeal rejected a claim to an easement
to have property protected from the weather by neighbouring property, because
this was of too wide or vague a character.

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In Palmer v. Bowman [2000] the Court of Appeal concluded that it is not


possible to have an easement to discharge percolating water on to the lower
land of another, since an easement of that nature cannot be defined. However,
it was not in fact necessary for the higher owner to demonstrate that he had
such an easement, as the owner of the lower land has no right to complain of
the discharge of natural drainage from higher land to his own.

The right claimed will not be an easement if it amounts to a claim of joint


use and enjoyment amounting to possession with the servient owner.
In Grigsby v. Melville (1973), which you may remember from earlier on, a
claim to use a neighbours cellar to store goods was held to be too extensive to
constitute an easement.
Again, in Copeland v. Greenhalf (1952), a garage owners claim to the right to
store vehicles awaiting and undergoing repair on neighbouring land was
rejected since it amounted to a claim to possession of the land.
In Hanina v. Morland (2000) the defendant used the flat roof of a gallery
below her maisonette for recreation, entertaining and sunbathing. Her claim for
an easement failed: she was claiming exclusive use.
However, the right to store articles on anothers land has been recognised in
some decisions, for example, in Wright v. Macadam (1949), where the right to
store coal in a coalshed was held to be an easement. The question is one of
degree. For example, in Miller v. Emcer Products Ltd (1956), the right to use a
neighbours lavatory was held to be an easement even though at times when
the easement was being enjoyed the servient owner would be excluded. The
right claimed did not amount effectively to treating the neighbours property as
ones own as in Grigsby v. Melville and Copeland v. Greenhalf.

The right claimed will not be an easement if it involves the servient


landowner in expenditure.
His obligation is the negative one of not interfering with the dominant
landowners enjoyment of the easement. He is not required to do anything
positive. For example, in Regis Property Co. Ltd v. Redman (1956) an
agreement by a landlord to supply hot water to the tenants of a block was held
not to give the tenants an easement.
An exception to this is the one anomalous case of the right to require a
neighbour to maintain and repair a fence. This was recognised as an easement
(of fencing) in Crow v. Wood (1971) CA. (Note: If such a right is drafted as an
easement rather than a positive covenant, the obligation will run with the
servient tenement; that is, it is a way of overcoming the problems of the
running of the burden of positive covenants.)

2.5 Examples
Examples of rights which have been held to be capable of being easements include:

a right to fix a signboard to the wall of a neighbouring house;

a right to hang clothes on a line passing over neighbouring land;

a right to lay and maintain drains, sewers, pipes and cables on or over
anothers land (and to enter the land to maintain them);

a right to park a car, e.g. on the forecourt of a block of flats.

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In London & Blenheim Estates Ltd v. Ladbroke Retail Parks Ltd (1993) the issue was
whether the purchaser of a piece of land had a right to park on other land retained by
the transferor.
The Court of Appeal decided on principle that a right to park can exist as an
easement, even where charges are made for parking or for the maintenance of the car
park. However, the right must not leave the servient owner without any reasonable
use of his/her land.
This view appears supported by a majority of the House of Lords judges in Moncrieff
v. Jamieson (2007) (though as a Scottish case it is not binding on the English courts).
It would seem therefore that a right to park in a specific slot, which would, in effect,
exclude the servient owner, might therefore not be capable of being an easement, but
could of course be a licence or lease, depending on the circumstances.
Similarly, a right to park cars which was too extensive, so that it amounted to joint
user, could not be an easement. This was confirmed in Batchelor v. Marlow [2001]
and in Central Midland Estates Ltd v. Leicester Dyers Ltd [2003] see Paper 2884.
You will recall that in this case there were alternative claims for ownership through
adverse possession and for an easement of parking. The claim for adverse possession
was rejected on the grounds that the defendants use was insufficient. The claim for
an easement of parking was rejected as the defendant was, on the facts, claiming the
right to park an unlimited number of vehicles on a piece of land, limited only by the
availability of parking space. This could not be an easement, as such a right would
make the ownership of the land entirely illusory. The same result, for the same
reason, was reached in Virdi v. Chana (2008).
Under Hair v. Gillman (2000), a right to park in any spot in a given area is capable of
being an easement. The facts in Kettel v. Bloomfold (2012) related to the landlords
wish to build on the parking area of a block of flats. The court decided that the
landlord could, on the facts, exercise some access to the area, for example to remove
obstructions from it, or lay pipes or cables under it. So there was no exclusive
possession by the tenants and their rights to park could be easements.

2.6 Other rights


If a right claimed by a landowner does not have the four essential characteristics of an
easement, it may nonetheless fulfil the requirements of some other interest in land.
Equally, if the landowners object cannot be achieved via the device of an easement,
it may be achievable in some other way. For these reasons it is worth briefly
considering some other rights which may exist in relation to land, and how they differ
from easements.

Licences
A licence is a personal right; it requires no dominant land, is revocable and in
general cannot be enforced against third parties.

Non-derogation from grant


This doctrine requires that someone who conveys or leases land to be used in a
particular way cannot use his own retained land in such a way as to make the
land conveyed less suitable for that purpose.
In the leading case of Aldin v. Latimer Clark, Muirhead & Co. (1894) the
doctrine operated to prevent a landowner building in a way which obstructed
the free passage of air over land he had let to the plaintiff to be used as timberdrying sheds. (But remember that a general right to air cannot exist as an
easement, being too wide and vague.)

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Public rights
A public right is vested in the general public irrespective of landownership,
whereas an easement of way requires dominant land.

Natural rights
All landowners have certain rights as a natural incident of owning the land (i.e.
not dependent upon some form of grant). For example, the right to support of
their land by adjoining land. Note, however, that there is no such natural right
to support of buildings by adjoining land or buildings. A right of support to
buildings must be acquired as an easement.
Damage may be claimed, however, for infringement of the natural rights of
support in respect of buildings damaged when support of the land on which
they stand is withdrawn.
In Midland Bank plc v. Bardgrove Property Services Ltd (1992) the Court of
Appeal held that, in order to establish an actionable interference with a natural
right of support of land, actual physical damage must be proved, not just
potential future damage. The Midland Bank could not therefore recover
230,000 spent on installing sheet piling to eliminate the risk of future
subsidence damage to its property due to building works on neighbouring land.
Holbeck Hall Hotel Ltd v. Scarborough BC (2000) was a case involving a
celebrated incident in which a hotel in Scarborough literally fell off a cliff into
the sea because of land slip.
Hs hotel was uphill of land owned by the defendant council. The councils
land collapsed, causing Hs hotel to be destroyed. One of the claims made by
H was infringement of their natural right to support. The problem with
pursuing such a claim here was that the court felt that there was no obligation
on the owner of the servient land (the defendant council in this case) to take
any active steps to maintain support.

Restrictive covenants
While both easements and restrictive covenants require dominant and servient
land, a restrictive covenant is equitable only while an easement may be legal or
equitable. (This classification mainly relates now to how they should be
protected against a third party buying the servient land.)
A restrictive covenant may sometimes achieve an object which cannot be
achieved by easement; e.g. there can be no easement giving a right to a view (it
is too wide and too vague), but a restrictive covenant may be imposed
preventing buildings which obstruct the view.

Rights under public law


Easements are a matter of private, civil law between two landowners. There is
no easement of view or light in general. However, under Part 8 of the AntiSocial Behaviour Act 2003 a residential owner (A) can complain where the
evergreen hedge of his neighbour (B) is over 2 metres in height and forms a
barrier to the light to As property (including his garden). Complaint is initially
to the local authority for the area, which, if the complaint is upheld, will serve
a notice on B requiring the hedge to be reduced in height. Failure to comply
can result in a fine.

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ACTIVITY
Are the following capable of being an easement?
Yes

No

Unknown

Right to have a fence maintained


Right to park a car in a marked bay
Right to drive a heavy lorry down an
unmade track
Right to support for a building
Right to a pleasant open view

3 Legal and equitable easements


Easements may be legal or equitable: the main significance is in the method of
protection for the easement to be binding on a buyer of the servient land.

3.1 Legal easements


Acquisition

An easement is legal if it is both:

held for an interest equivalent to a fee simple absolute and in possession or a


term of years absolute s.1(2)(a) LPA 1925; and

made by deed (whether expressly or by implication) or by statute.

For example: An easement granted for life would not comply with the first condition
and would therefore be equitable.
Note: An easement created by prescription is a legal easement.
Enforceability

In general, a legal easement is enforceable against the whole world in unregistered


land. In registered land, it must, to be enforceable, be entered in the Property Register
of the dominant land and the Charges Register of the servient land, unless ranking as
an overriding interest.

3.2 Equitable easements


Acquisition

It follows that an easement is equitable if for an interest other than a fee simple or
term of years absolute, or if it is expressly granted but not made by deed.
(Note: Easements created by implied grant or reservation may be legal or equitable
depending on the circumstances.)

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Enforceability

In registered land an equitable easement must be protected by notice in the Charges


Register of the servient land. Formerly in certain cases an equitable easement in
registered land could be an overriding interest and thus not need protection in the
Register. This changed under LRA 2002 (see Paper 2883) when all equitable
easements created after 13 October 2003 must be registered (subject to transitional
arrangements).
In unregistered land an equitable easement needs to be registered as a land charge,
otherwise it is void against a purchaser of the legal estate for value without notice.
Note: In dealing with problem questions on easements, where an easement may have
been acquired in a number of ways (on the facts) it will be advantageous to a claimant
to show that it has been acquired by one of the methods which create a legal easement
(e.g. prescription), although, of course, you need to discuss all relevant possibilities.

4 Acquisition of easements
Overview

4.1 By statute
Easements may be created by public or private Act of Parliament. This is usually in
connection with works such as building of roads or railways by public authorities.

4.2 Express grant or reservation


Most easements are created expressly when a landowner sells off part of his land. It
is, of course, equally possible for neighbours to agree expressly to create easements
between their respective pieces of land: this will be achieved by means of an express
grant in a deed.
However, if a vendor is selling off part of his land, easements may be created either
by grant or reservation, depending on the circumstances:

Reservation is used where the vendor wishes to reserve an easement over the
land he is selling, for the benefit of the land he is retaining.

Grant is used where the vendor grants the purchaser an easement over his
retained land, to the benefit of the land being sold.

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Note: Any ambiguity as to the extent of the right granted or reserved is normally
resolved in favour of the dominant land. In the case of an express reservation, the
ambiguity is interpreted against the grantor, and the servient owner is treated as
grantor (though this rule is to be applied rarely St Edmundsbury Ipswich Diocesan
Board of Finance v. Clark (1975)).

4.3 Implied grant or reservation


Where a landowner sells or leases a part of his property and retains the rest (or
disposes of it all in lots), then in certain defined cases the law will imply the grant of
an easement to the purchaser or its reservation by the vendor, even though the
transaction contains no express grant or reservation.
The cases are:

easements of necessity (grant or reservation)


intended easements (grant or reservation)
easements within the rule in Wheeldon v. Burrows (grant only)
easements created under s.62 LPA (grant only).

Easements of necessity

The most common easement which may be implied out of necessity into a transaction
is a right of way for land which is left landlocked as a result of the transaction i.e.
where the sellers retained land has no access other than across the land sold or vice
versa.
Intended easements

The grant or reservation of an easement will be implied into a transaction where that
is necessary to give effect to the common intention of the parties. The intention must
be common to both parties, and not just the intention of one party.
The categories of easements of necessity and intended easements may overlap. Where
a property dependent for its support on an adjoining property is sold by the owner of
both properties, reciprocal easements of support will be implied either on the basis
that such easements are necessary or on the basis of the common intention of the
parties.
Similarly, the case of Wong v. Beaumont Property Trust Co. (1965) was held to
involve the implication of an easement out of necessity but could have been decided
on the basis of the intentions of the parties. The tenant of a cellar restaurant was
required by the terms of his lease to control all smells, etc. in conformity with the
relevant health regulations. This he could only do by fixing a ventilation duct to the
outside wall of the landlords retained property. The Court of Appeal held that the
grant of an easement to affix the duct was implied in the lease out of necessity to
enable the tenant to conform to its terms.
Implied grant
Easements within the rule in Wheeldon v. Burrows (1878)

This rule is based on the proposition that a person may not derogate from his/her
grant. This means a person may not grant land and at the same time deprive the
grantee of what is necessary for the reasonable enjoyment of the land.

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This rule only operates to grant easements, not to reserve them. The grant of
easements will be implied in a sale or lease of part of the vendors land if they:

are continuous and apparent;

are necessary to the reasonable enjoyment of the property granted;

have been, and are at the time of the grant, used as a quasi-easement by the
owner of all the land over the part retained for the benefit of the part granted.

Something is continuous and apparent if it is discoverable on a careful inspection by


a person ordinarily conversant with the subject Pyer v. Carter (1857) and is
neither transitory or intermittent.
EXAMPLE: Borman v. Griffith (1930)

Borman occupied a house (The Gardens) in the grounds of a private park under an
agreement for a seven-year lease. He made use of the main drive of the park which led to
The Hall, although the agreement contained no express grant to him of a right of way
along it, and although his house could be reached by an unmade track at the rear.
There was no question of a right to use the drive being implied in the agreement out of
necessity, since the track at the rear gave access. However, the court held that a right of
way over the drive passed to him under Wheeldon v. Burrows, being plainly visible,
necessary for the reasonable enjoyment of the house, and so used at the time of the
agreement.

Note: It is common, in a contract for sale of land, expressly to exclude the operation
of the rule in Wheeldon v. Burrows.
Easements created under LPA s.62

Section 62 LPA states that rights enjoyed with the land pass with it on a conveyance
without needing to be specifically mentioned:
A conveyance of land shall be deemed to include and shall operate to
convey, with the land, all liberties, privileges, easements, rights and
advantages whatsoever, appertaining or reputed to appertain to the land, or any
part thereof, or, at the time of the conveyance enjoyed with or
appurtenant to the land or any part thereof.

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The courts have given s.62 an important additional effect. It converts rights enjoyed
simply by licence prior to the conveyance into easements on the conveyance,
providing the rights then have the four necessary characteristics of an easement. So it
most frequently operates for this effect where the owner of two tenements (A and B)
gives an informal licence over tenement A to the occupier of tenement B and then
conveys tenement B to that occupier.
Preconditions for the operation of s.62

There must be a conveyance of land. This includes a lease.

The right must be one known to law (i.e. capable of existing as an easement;
for example a right to a view would not qualify).

There must be diversity of ownership or at least of occupation of the two


tenements prior to the conveyance (Sovmots Investments Ltd v. Secretary of
State for the Environment (1979)).

This last requirement is in contrast to the position under the rule in Wheeldon v.
Burrows, though the court disagreed in P & S Platt Ltd v. Crouch and Another
(2003).
Wright v. Macadam (1949) is an example. A tenant was given permission by the
landlord to make use of his coalshed. When the landlord renewed the lease, it was
held by the Court of Appeal that the right to use the coalshed passed as an easement
to the tenant.
Another illustration is Goldberg v. Edwards (1950). E leased an annexe at the rear of
her house to G. The annexe could be reached from the front by a side passage. G was
allowed into possession before the formal lease was executed and was given
permission to go through the landlords house to reach the annexe. The lease was
subsequently executed.
E then let the house to M who barred the door to G.
G claimed that, in addition to his right to use the side passage, he had a right to go
through the house by virtue of s.62. His claim was upheld. At the time of the
conveyance (i.e. when the formal lease to G was executed) the right to go through the
house was a privilege enjoyed with the annexe and so passed to G as an easement.
These two cases show that the landlord should take care to revoke any licences
granted to tenants before executing or renewing their leases.
In P & S Platt Ltd v. Crouch & Another (2003) a hotel was sold to the claimants. It
was advertised with private riverside moorings on land retained by the defendants.
The court said that the mooring rights appertained to the hotel business, and were
advertised as such. On the sale to the claimants the rights, which were continuous and
apparent, converted to easements despite the hotel and moorings being in the same
occupation and ownership before sale.
According to Graham v. Philcox (1984), s.62 also enables a purchaser of land to
acquire easements which were originally granted for the benefit of part only of the
land conveyed. In that case, the purchaser of the freehold of a house acquired, under
s.62, a right of way originally granted to a tenant of a first-floor flat in the house.
Connection with the rule in Wheeldon v. Burrows

It is probably true to say that the doctrine of Wheeldon v. Burrows has declined in
importance since the advent of s.62 LPA, but it is still relevant where s.62 does not
apply for instance where there has been no diversity of ownership before
conveyance or where there has been no conveyance.

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Interaction between s.62 and Wheeldon v. Burrows

The operation of s.62 requires a conveyance. In Borman v. Griffith the claim to


the right of way along the drive failed under s.62 because an agreement for a
lease of more than three years is not a conveyance since a deed is required to
convey such a lease. (A lease for three years or less in writing is a
conveyance.) The claim did succeed under Wheeldon v. Burrows.

Under Wheeldon v. Burrows, the right must be necessary for the reasonable
enjoyment of the property. In Goldberg v. Edwards the claim to a right of way
failed under this rule because it was not necessary for the reasonable
enjoyment of the annexe since the annexe could be conveniently reached by
the side passage. The claim did succeed under s.62.

Section 62 and the conveyance

Section 62 applies unless a contrary intention is expressed in the conveyance. A


landowner may prevent the section from operating to create new easements by
expressly excluding the section or making it clear that it is not intended to operate.
Furthermore, s.62 operates only on the conveyance; but it is the contract which in
the normal conveyancing transaction precedes the conveyance which governs what
is conveyed: the purchaser is only entitled to have conveyed to him what he has
contracted to buy.
If the parties in their contract did not intend s.62 to work to create new easements, the
conveyance can be rectified by a court so as to accord with the contract, thereby
excluding the effect of s.62. Rectification, however, is a discretionary remedy which,
for example, the court might not grant if the vendor delays in applying for it. It is
therefore preferable to exclude the section from the outset.
This would also be the case where a landlord lets property to someone already in
occupation, as, for example, where he renews the lease. Rarely will the lease be
preceded by a contract which would limit the contents of the lease. The section
should therefore be excluded in the lease.

4.4 Prescription (i.e. presumed grant)


Prescription operates to create a legal easement where for a long period of time the
owners of one piece of land have enjoyed a right, capable of existing as an easement,
in respect of neighbouring land. In such a case, there having been no express grant of
the easement and no transaction relating to the two properties into which the grant of
an easement could be implied, the law presumes a grant to have been made (a sort of
legal fiction).
General principles

The law relating to prescription is complicated by the fact that there are three separate
ways in which a person who has long enjoyed some right over a neighbours land
may claim that he has acquired an easement by prescription:

at common law
by lost modern grant
under the Prescription Act 1832.

Whichever of these forms of prescription the landowner relies on, he must first show
that his enjoyment of the right has been continuous, in fee simple and as of right.

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Continuous
It is not necessary to show incessant enjoyment all day and all night, merely
that the right has been in regular use during the period. The use can be by
successive owners of the dominant tenement, so long as continuous (Payne v.
Shedden (1834); Davis v. Whitby (1974)).

In fee simple
An easement (other than a right of light) may only be acquired by (or on behalf
of) a fee simple owner against a fee simple owner.
Long enjoyment of a right by a tenant does not enable him to acquire an
easement; instead he is deemed to enjoy the right on behalf of the freehold
which acquires the easement.
Similarly, if the servient property is held by a tenant under a lease throughout
the period that the right in respect of it is being enjoyed, no easement can be
acquired by prescription. If, however, the period of enjoyment began when the
land was held by the freeholder, the fact that a tenancy is later granted in
respect of the servient land is not fatal to the claim.
A tenant cannot acquire an easement by prescription against his neighbouring
landlord or a neighbouring tenant of the same landlord.

As of right
The claimant must show that he made use of the right as if he was entitled to it;
i.e. his enjoyment must have been as of right. This is expressed in the Latin
maxim requiring that enjoyment be nec vi, nec clam, nec precario.

nec vi (not by force). A person can hardly claim to have enjoyed a right
as if he was entitled to it if he had to use force to make use of it or,
indeed, if he has made use of the right in the face of opposition from the
servient landowners.

nec clam (not secretly). If the right has only been enjoyed secretly
rather than openly it cannot be as of right.
The question for the court will be whether an ordinary owner of the
servient land, diligent in the protection of his interests, would have, or
must be taken to have, a reasonable opportunity of becoming aware of
the enjoyment Union Lighterage Co. v. London Graving Dock Co.
(1902).

nec precario (not by permission). If the dominant owner only enjoyed


the right by virtue of permission being given by the servient owner,
this will defeat a claim to enjoyment as of right because such permission
could be withdrawn at any time.

If a licence is given which later expires but the use continues without further
permission, this can lead to an easement by prescription (London Tara Hotel Ltd v.
Kensington Close Hotel Ltd (2012)).
Prescription at common law

At common law, a claim to have acquired an easement by prescription will succeed if


it is shown that the right has been enjoyed continuously, in fee simple, as of right
since before 1189 (which is said to be a time whereof the memory of men runneth
not to the contrary i.e. time immemorial).

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This is clearly not easy to prove, so it became accepted that if enjoyment during
living memory, or even over a period of 20 years, is shown, enjoyment since before
1189 would be presumed. This presumption, however, can and often will be rebutted
by evidence that at some time since 1189 the right did not exist or could not have
existed. For example, a claim to an easement of support to a building will fail at
common law if the building was built in 1800 (i.e. after 1189).
Because rebutting the presumption of immemorial enjoyment is often so easy, the
courts invented the doctrine of lost modern grant.
Lost modern grant

Under this method of claiming an easement by prescription, which originated in the


18th century, the court presumes that an easement was granted at some time in the
past, before the period of enjoyment began, but that the grant has now been lost. Such
a lost modern grant will be presumed on evidence of 20 years enjoyment of the right
(continuously, in fee simple, as of right).
This is an entirely fictional presumption it cannot be rebutted by evidence that there
was no grant made. It can only be rebutted by evidence that no grant could possibly
have been made (for example, there was no person capable of making the grant).
Today this method is probably the last resort for a claimant unable to rely on common
law prescription or the Prescription Act.
Prescription Act 1832

This Act was passed to resolve some of the difficulties of lost modern grant.
For the purposes of the Act, easements are divided into two groups: easements of
light (these will be dealt with later), and other easements. In relation to these other
easements, s.2 of the Act provides for two different bases of claim:

Twenty years enjoyment


Continuous enjoyment, in fee simple, as of right (nec vi, nec clam, nec
precario), for 20 years without interruption, immediately preceding a court
action relating to the claim, will establish a claim to an easement by
prescription under the statute.
Enjoyment for 20 years will not do; it must be 20 years immediately preceding
a court action to confirm the existence of the easement. This court action may
be one brought by the dominant owner claiming the right, or one brought by
the servient owner seeking to put an end to the enjoyment.
The Act says that to constitute an interruption of the period of enjoyment an
act must be submitted to or acquiesced in for one year. So if the dominant
owner has enjoyed the right for 20 years before he is interrupted by the
servient owner, he can still bring an action to claim the right under the statute
if he does so within a year of the interruption beginning.
Time during which the servient land is held by a person who is a minor, lunatic
or tenant for life under a strict settlement must be excluded from the
computation of the 20 years enjoyment, i.e. the dominant owner must show 20
years plus that time.

Forty years enjoyment


Enjoyment of the right, as of right, for 40 years, without interruption,
immediately preceding a court action, will establish an easement by
prescription unless the enjoyment depended on written permission.

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Oral permission to make use of the right given by the servient owner at the
beginning of the period of enjoyment will not prevent a 40-year claim
succeeding (it would prevent a 20-year claim succeeding). Nevertheless, it is
unusual to rely on the 40-year period.
However, since the enjoyment must in other respects be as of right, if the
enjoyment depends on regular permission (written or oral) it can never ripen
into an easement. In Gardner v. Hodgsons Kingston Brewery Co. (1903) 40
years use of a right of way did not give rise to an easement by prescription
because the dominant owner had made an annual payment of 15 shillings for
the privilege of using the right of way.
Any time during which the servient land was held under a lease of more than
three years will be deducted from the total number of years enjoyment in
computing the 40-year period, provided that the servient owner resists the
claim to the easement within three years of the end of the lease. If he does so,
the dominant owner must show 40 years plus the period of the lease.
Note: It is not in general possible to acquire an easement to do something prohibited
by a public statute.
In Hanning v. Top Deck Travel Group Ltd (1994) the Court of Appeal held that
owners of properties fronting common land could not claim rights of vehicular access
by prescription across the common land, since under s.193 LPA 1925 it is a criminal
offence to drive on common land without the consent of the landowner. As a result,
the owners of common land were able to deny access or charge large fees for consent.
(To assist such frontagers, s.68 Countryside and Rights of Way Act 2002 provided for
the creation of an easement giving vehicular rights over common land, subject to
compensation payable to the owner of the servient land. Section 68 was later
repealed.)
In Massey v. Boulden (2002), the vehicular use of a track across a registered village
green was held to be illegal under s.34 Road Traffic Act 1988.
The House of Lords later overruled the Hanning decision in Bakewell Management
Ltd v. Brandwood & Others (2004) a case which arose when the frontagers objected
to the fee charged for access by Bakewell Management Ltd as owner of the common
land. Their Lordships distinguished between actions which were criminal as against a
public statute and those which were illegal only in the tortious sense because of the
lack of authority from the landowner as in this case. They held that if an easement
could be lawfully granted by the servient landowner, it could be acquired by
prescription under the Prescription Act 1832 or by lost modern grant. There was no
rule of public policy to prevent the frontagers succeeding in their claim for an
easement. Their Lordships made it clear that if the Hanning decision was wrong, so
too was the decision in Massey. (Section 68 Countryside and Rights of Way Act 2002
was repealed as a result.)
In Housden v. Conservators of Wimbledon and Putney Commons (2008) the Court of
Appeal, reversing earlier decisions, decided that the Conservators statutory powers
did not prevent acquisition of an access easement by prescription after 40 years. The
Conservators duty was to keep the common an open space. An easement would not
give the right to enclose the access way or interfere with public enjoyment of that part
of the common.

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CASE STUDY
A summary of a rather unusual decided case on prescription might help to illustrate these
rather complicated rules in operation: Tehidy Minerals Ltd v. Norman (1971) CA.

The occupants of seven farms claimed common rights of grazing (i.e. a profit
prendre) over an adjoining down.

Three of the farms were able to show that they had been accustomed to graze
animals from at least the late 19th century; the other four farms and the down itself
had been in common ownership until 1920, which was when their alleged period
or user commenced.

In 1941 the down was requisitioned and ploughed up for cultivation.

In 1954 the Ministry allowed grazing to recommence under an agreement with the
commoners association, subject to the payment of a charge.

When the down was de-requisitioned in 1960, the plaintiffs (owners of the down)
agreed to the continuation of the grazing on the down, subject again to a payment.

The plaintiffs now claimed to be able to terminate the agreement, while the
farmers asserted common right of pasturage, based on prescription.

It was held:

That any user after 1954 must be disregarded since it was by agreement and not as
of right. Thus no claim could be made under the Prescription Act 1832 since any
period of user could not be immediately before the action.

That the owners of the three farms could establish their rights at common law,
since they could prove user back into the 19th century, and, in the absence of any
evidence to the contrary, user from time immemorial could be presumed.

That due to being in common ownership with the servient tenement until 1920, the
four farms could not establish prescription at common law. However, they could
successfully base a claim on the fiction of lost modern grant, the period of user
being that between 1920 and 1941. The court held that evidence to suggest that no
such grant had ever been made must be disregarded under the fiction of lost
modern grant; such a claim could only be defeated if it were shown that there was
no one legally capable of making such a grant. It was also held that a period of 20
years was sufficient to establish a profit prendre (the Prescription Act requires at
least 30 years).

Finally it was held that the 1960 grazing agreement with the plaintiffs did not
constitute an abandonment of the grazing rights on the part of the farmers.

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5 Specific easements
5.1 Rights of way
A right of way may be acquired in any of the ways mentioned above. The extent of
the right of way will depend on the method of its creation.
If it was expressly granted or reserved, the provision in the deed creating it will
usually be construed in the light of the circumstances at the time it was made. Any
ambiguities are resolved in favour of the dominant landowner.
In Rosling v. Pinnegar (1986) the appellant bought a historic house in 1982 and was
granted a right of way over a lane enjoyed in common with a number of villagers.
The Court of Appeal held that opening the house to the public in 1985 (which
resulted in a large increase in traffic) amounted to excessive user and a nuisance to
the other villagers. An order was made detailing the extent and frequency of the
periods when the house should be open.
In White and Another v. Richards (1993), in 1987 the plaintiff had been granted the
benefit of a right to pass and repass on foot and with or without motor vehicles
along 250 metres of what was described as no more than a dirt track some 2.7 metres
wide. He then proceeded to use it on average for 14 to 16 heavy lorries per day.
The Court of Appeal held that, even though the wording of the grant was not
restrictive, the right itself was restricted by the physical characteristics of the track.
Here the user was excessive.
In Perlman v. Rayden (2004) the defendant had been granted a right of way over the
claimants roadway to carry out repairs and maintenance. This did not extend to
building works to construct a new extension to the defendants property.
Much depends on wording. The court must ascertain the intentions of the original
parties. In Davill v. Pull (2009) D owned some plots of garden ground served by an
access path. He had planning permission to build houses on the plots. When they
were originally conveyed individually, a right was given to use the path for all
reasonable and usual purposes as are necessary to give access to and from the
plots conveyed. The Court of Appeal decided that nothing in the conveyance limited
the path as an access to the plots only as garden ground. The grant of a right of way
was for the benefit of the dominant land but the right can still be used if the use of the
dominant land changes. In this instance, the drafter could easily have restricted the
use, if that was the intention, by stating that the path was for the use of the plots as
gardens.
The Court of Appeal in Risegold Ltd v. Escala Ltd (2008) (overturning the decision of
the lower court) decided that an express easement to enter the servient land to carry
out maintenance, repair, rebuilding or renewal to the dominant land, being widely
worded, extended to entry in order to redevelop the dominant land by replacing a
single building by a five-storey commercial block.
However, in Hotchkin v. McDonald & Others (2004) a 1965 conveyance contained a
right of way for all purposes connected with the use of the property. Those purposes
were limited in the conveyance (by a restrictive covenant) to offices and ancillary
purposes. The court held that if an application to the Lands Tribunal to remove the
use limitation succeeded, then the scope of the right of way would automatically be
altered to reflect the changed character of the property.

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In Smith v. Garrard (2004) a vehicular right of way was reserved over a driveway
which was sold to a developer together with land for building or converting five
dwellings. The easement was coupled with a restrictive covenant by the developer not
to park vehicles on the driveway or in any way obstruct free passage on it.
Subsequently one of the dwellings and the whole of the driveway were bought by the
defendant. The claimant with the benefit of the easement sought an injunction to
restrain the defendant from parking on the driveway. The court looked at the
circumstances and the wording of the covenant. It decided that, provided sufficient
space was left for unimpeded use of the driveway, parts could be obstructed. The
purpose of the covenant was to safeguard use of the right of way and not to impose an
absolute prohibition on parking regardless of obstruction or not.
A right of way granted to reach one specific plot of land will not extend to another
separate plot, even if behind or adjacent to it and owned or acquired by the same
person (Harris v. Flower (1904); Bracewell v. Appleby (1975); Das v. Linden Mews
Ltd (2002); Giles v. Tarry (2012)).
A right to park may be ancillary to an express right of way (even if not mentioned)
provided there is no undue burden on the servient tenement (Moncrieff v. Jamieson
(2007)). The right to park is also capable of being implied into a right of vehicular
access if reasonably necessary (rather than merely desirable) for exercise or
enjoyment of the access, but there is no such implied right if there are already express
rights (Waterman v. Boyle (2009)).
If the easement was granted or reserved by implication, the extent of the right of way
will be limited to the circumstances prevailing at the time.
For example, in London Corporation v. Riggs (1880), a right of way arose by
implication out of necessity. At the time, the land was used for agricultural purposes
and it was therefore held that the right of way could only be used for purposes related
to the agricultural use of the land.
(By analogy an implied easement of drainage in favour of a bakery over adjoining
land could not be used by the two houses which replaced the bakery (McAdams
Homes Ltd v. Robinson (2004)).)
If the right of way was acquired by prescription, the question will normally be
decided by looking at the way the right was enjoyed during the prescriptive period.
An increase in the use of a right of way cannot be objected to by the servient owner
except when this results from a change in the nature of the use. For example, in
British Railways Board v. Glass (1965), which concerned a prescriptive right of way
to a caravan site, the servient owner could not object to a considerable increase in the
number of caravans using the site. A vehicular right of way is not limited to the type
of vehicles in use during the period of acquisition of the easement (Zieleniewski v.
Scheyd (2012)), in this case agricultural machinery.

5.2 Rights of light


Nature of a right of light

A right of light may be acquired as an easement. If so it is a negative easement since


it is a right not to have your light obstructed.
Rather than a right to light as such, it is probably better described as a right to be left
with enough light (hence a right of light).
In the law of easements there is no right to sunlight as such (for example to a field or
garden); the right must relate to a building or structure with clearly defined apertures
through which the light can pass. This contrasts with public law and the special rules
for high hedges under the Anti-Social Behaviour Act 2003.

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Acquisition of a right of light

A right of light can be acquired in any of the ways mentioned for other easements but,
as far as a claim under the Prescription Act is concerned, a claim to 20 years
uninterrupted enjoyment immediately preceding the court action gives right to an
absolute and indefeasible right of light, unless enjoyed by written consent. The
enjoyment need not be as of right, and it does not matter that the servient land was
occupied by a tenant.
On the issue of by written consent, in RHJ Ltd v. FT Patten (Holdings) Ltd (2008)
general words in a lease reserved to the landlord the right to develop its adjoining
land free of any implied estate, right or easement. This general wording excluded
acquisition of a right to light as, properly interpreted, it was clear that the right to
enjoy light was with consent.
By contrast, in Salvage Wharf Ltd and Birmingham Development Co. Ltd v. G & S
Brough Ltd (2009) GSB signed an agreement not to claim compensation for
interference with a right to light. As the agreement related only to one particular
redevelopment of adjoining land affecting GSBs land, its existing rights to light were
preserved in respect of any other different development.
A prescriptive right of light is sometimes referred to as ancient lights.
How much light?

According to Colls v. Home and Colonial Stores Ltd (1904), the amount of light to
which the claimant of a right of light is entitled is sufficient light for the comfortable
and beneficial use and enjoyment of the property according to the ordinary notions
of mankind.
Enough light was described in Carr-Saunders v. Dick McNeil Associates (1986) as
that which left the property adequately lit for all ordinary purposes for which the
property might be expected to be used.
In HXRUK II (CHC) Ltd v. Heaney (2010), the judge commented that a room is
regarded as adequately lit for commercial purposes if 50% of the room is well lit.
However, in Allen v. Greenwood (1980) it was suggested that if a more than sufficient
amount of light is enjoyed over 20 years with the knowledge of the servient owner, a
prescriptive right to that amount of light may be acquired.
What is a sufficient amount of light depends on the nature and use of the building,
hence in Allen v. Greenwood itself (which concerned light to a greenhouse) it was
decided that a high degree of light may be necessary in some cases.
In Midtown v. City of London Real Property Co. Ltd (2005) substantial diminution of
the natural light would result from the defendants development. The defendant
argued that this was irrelevant since the rooms in the claimants property were
habitually lit by artificial light. The court dismissed this argument and awarded
damages to the claimants.
In Tamares (Vincent Square) Ltd v. Fairpoint Properties (Vincent Square) Ltd (2006)
there was a claim for interference by the defendants development with an easement
of light in respect of basement and reception lobby windows at the claimants
premises. The claim was unsuccessful in respect of the reception windows since they
had in fact, throughout the prescription period, been boarded up on the inside. This
prevented acquisition of an easement.

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Defeating a right of light

A right of light is not interrupted for the purpose of the Prescription Act until the
interruption has been submitted to for one year. This may be a physical interruption
or a legal one.

Physical interruption
In Dance v. Triplow (1992), the plaintiff (P), Mr Dance, owned a 1930s
bungalow in East Sussex. In 1980 Ps neighbours Mr and Mrs Triplow
constructed an extension to their house which physically interfered with the
light to Ps spare bedroom. Clearly there had been over 20 years enjoyment of
light to the room. The issue here was whether P had taken action against the
Triplows in time, since acquiescence in the situation for a period exceeding
one year would mean P could not sue.
The Court of Appeal held that where an obstruction of light has lasted for more
than a year (as was so here) it is for the plaintiff to prove that he has not
acquiesced or submitted to it. The onus was on Mr Dance to show that he was
unwilling to accept the extension with specific regard to the right of light, and
he had failed to discharge this burden.
Advisers must therefore ensure that where there is actual obstruction to a right
of light, the objector protests vigorously and repeatedly on that point, and takes
legal action within a year of the time when the obstruction came into effect.

Legal interruption
Rather than erecting a physical obstruction to block the light to the particular
window concerned, it is possible for a person seeking to defeat such an
easement to apply, under the Rights of Light Act 1959, for the registration of a
notice in the Local Land Charges Registry maintained by the district council.
This is treated as being equivalent to an actual physical obstruction. The
application must state the size and position of the opaque structure which the
notice is intended to represent. Before the notice can be registered, the Upper
Tribunal (Lands Chamber), formerly the Lands Tribunal, must certify that
those affected by the registration have been notified. Registration lasts for a
year.

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6 Interference with easements


The owner of the servient land must not act in such a way as to interfere substantially
with the enjoyment of the easement by the dominant owner. If he does so, he may be
liable to the dominant owner in the tort of nuisance. Whether his actions constitute an
interference may depend on the extent of the right granted to the dominant owner.
In Celsteel Ltd v. Alton House Holdings Ltd (1985) the reduction in width of
driveways from 9 metres to 4 metres over an appreciable distance (by building a carwash there) was held to be a substantial interference with a right of way.
By contrast, on the facts in Waterman v. Boyle (2009) there was no nuisance. The
dominant owner had a right of access to her garage over the servient land. A wall,
built entirely on the servient land not part of the access, prevented her from turning
into the garage from the access. There would have been no problem with a smaller car
or different garage door arrangement.
Interference can also be derogation from grant, as in Carter v. Cole (2009). Here, the
Carters sold land to the Coles, reserving a right of way from the public highway to
land which they retained for commercial uses. At the junction of the highway and the
right of way there was a visibility splay. The Coles obscured the visibility splay by
planting shrubs and erecting fencing. As a result, the Carters application to renew
planning permission for their commercial use was refused. The court awarded them
damages for derogation from grant and an injunction for restoration of the splays.
Alteration of an easement is possible but not by one party alone. While the servient
owner can grant by himself a right of way over an alternative route, release of the
previous right must be with the dominant owners consent (Heslop v. Bishton (2009)).
There is established authority that the servient owner is not obliged to carry out
repairs which might be needed to enable the dominant owner to enjoy the easement
(e.g. to the surface of a right of way or to a building of his which provides support to
his neighbours building). There is correspondingly a right on the part of the
dominant owner to enter the servient land to carry out the necessary repairs.
However, it was held in Bradburn v. Lindsay (1985) that a servient owner who fails
to take reasonable step to prevent disrepair interfering with the dominant owners
easement may now be liable in negligence or nuisance.
Remedies

The dominant owner has the following remedies for interference with his easement:

abatement this is a self-help remedy which enables the dominant owner to


enter the servient land to remove the interference, e.g. remove the blockage of
a right of way. However, he should take care to use the least harmful method
and not to cause unnecessary damage;

action in the courts seeking an injunction or damages.

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Injunction or damages

An injunction is a court order to the servient owner to cease the interference. It is


granted at the discretion of the court and not when damages would be an adequate
remedy. The principles on which it would be granted or refused were authoritatively
laid down in the case of Shelfer v. City of London Electric Lighting Co. (1895). In this
case vibrations from the defendants electric generators caused nuisance in the form
of damage to a neighbouring building of which the plaintiff was tenant. The plaintiff
was granted an injunction by the Court of Appeal. In his judgment, Smith LJ stated
that an injunction should be withheld and damages awarded instead:

if the injury to the plaintiffs legal rights is small; and

is capable of being estimated in money; and

is one which can be adequately compensated by money; and

in the circumstances it would be oppressive to the defendant to grant an


injunction.

As a result of these guidelines, courts have been reluctant to award injunctions. In


Colls v. Home & Colonial Stores Ltd (1904) Lord MacNaghten said that where a
defendant was acting reasonably, the courts should award damages rather than grant
an injunction.
In Midtown v. City of London Real Property Co. Ltd (2005) damages were awarded
rather than an injunction, despite the substantial interference.
These principles were also applied in the case of Tamares (Vincent Square) Ltd v.
Fairpoint Properties (Vincent Square) Ltd (2006). In this case the defendant had
knocked down a single-storey extension and in its place put up a three-storey building
with a pitched roof. The claimant applied for an injunction but this was refused,
despite interference with light easements to two windows. An injunction would be
oppressive since this would result in the demolition of part of the defendants
building. The injury in relation to the basement windows was small and could be
adequately compensated by a small sum of damages.
It has been thought by some that the reluctance of the courts to grant injunctions
ignores the interests of property owners who would prefer to have the full extent of
their previous easement restored. The tide seems to have turned in recent cases.
In Regan v. Paul Properties Ltd (2006) the defendant was building a five-storey block
adjacent to the claimants maisonette residence. This would have reduced the
adequate light to the claimants living room from 67% to 43%45% with the main
effect in the middle of the room. The defendant did not consider the effect on the
claimants property initially and, when the claimant protested a month after the start
of the development, informed him incorrectly (on the basis of inaccurate expert
advice) that there would be no injury on which to base legal action. The claimant
eventually took action and was awarded an injunction by the Court of Appeal.
Mummery LJ restated the guidelines from Shelfer and subsequent cases. He said that
the court should not, by awarding damages, uphold an infringement of a claimants
rights apart from in exceptional circumstances. The court should take into account
whether:

the injury to the claimants rights was great or small;

the injury could be estimated in money;

the injury could be adequately compensated by a small money payment;

awarding an injunction would be oppressive to the defendant;

the claimant had shown that he only wanted money (e.g. by previous
negotiations over compensation);

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the conduct of the claimant made it inequitable to award him a remedy other
than money;

there were any other circumstances to justify refusing an injunction.

In this case, the judge said that the injury was not small. It was capable of being
estimated in money (a reduction of 5,500 in the value of the claimants 200,000
flat) but could not be sufficiently compensated by a small money payment. Ordinary
activities would be affected. The injunction would not be oppressive since the
defendant had continued with the work despite protests (described as taking a
calculated risk in the circumstances).
The principles were also applied in HXRUK II (CRC) Ltd v. Heaney (2010). Here, the
developer owner of a five-floor building had planning permission to add two more
floors. The developer was aware that the addition would infringe the right to light of
the neighbouring owner, Heaney. Negotiations over compensation failed. Heaney
threatened to apply for an injunction but delayed in doing so. After adding the two
additional floors, the developer applied to the court for a declaration that only
damages were due, while Heaney then applied for an injunction, which was awarded
to him. The court decided that the injury was not small, considering the character of
Heaneys building and the reduction of light to it. An injunction would not be
oppressive to the developer, whose motive was profit, and who could have easily
altered the dimensions of the additional floors.

7 Extinguishment of easements
An easement may be extinguished (i.e. come to an end) in the following ways:

By statute (e.g. some provisions of the Town and Country Planning Act
1990). The statute must be one which operates on property rights (Jones v.
Cleanthi (2006)). Here a landlord had given his tenant a right of access through
a corridor but was later required under a statutory notice to brick up the access.
He did so and the corridor was made part of his shop. The Court of Appeal
decided that the statute relating to the notice did not extinguish the easement;
this still existed and could revive in the future.

By express release (i.e. agreement) this is best done by the dominant owner
executing a deed, but may be done by other methods.

By implied release (i.e. abandonment). The servient owner must show that the
dominant owner, by his conduct, has abandoned the easement.
It can be extremely difficult in practice to prove abandonment, as is
demonstrated by the case of Benn v. Hardinge (1992). Here, the Court of
Appeal held that non-user of a right of way even for as long as 175 years was
not sufficient by itself to amount to abandonment: clear intention to abandon
must be shown. In CDC2020 plc v. Ferreira (2005) an expressly granted right
of way to access three garages was not abandoned, despite demolition of the
garages and subsequent use for 30 years of the access to reach other land
beyond the garage site. (This use was, of course, in excess of the original
grant.)
In Wall v. Collins (2007), a right of way over adjacent leasehold land was
originally granted as part of a 999-year lease. The Court of Appeal decided that
the easement still existed despite leases of both pieces of land ending by
merger when the respective owners bought the freeholds of their properties.
While the easement must benefit the dominant tenement, it was not limited to
any particular interest for the time being.

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Change in the dominant tenement may demonstrate abandonment as in Moore


v. Rawson (1824). The dominant owner pulled down a wall with windows
through which he enjoyed rights of light and replaced it with another without
windows. Fourteen years later the servient owner erected a building which
would have obscured the light had the windows still been there. The dominant
owner could not succeed in a claim for obstructing his light; by erecting a
building completely different from the previous one he had shown an intention
to abandon his rights. See also Megaro v. Di Popolo (2007).

Where the fee simple of both the dominant and servient tenements become
owned by the same person who is in actual possession of them.

8 Profits prendre
8.1 Definition
A profit prendre is a right to enter anothers land and take produce from it, e.g.:

part of the soil (e.g. gravel, stone, clay etc.);


part of the produce of the soil (e.g. grass, fruit); or
wild animals on the land (e.g. fish, game).

So the rights to shoot game, take gravel and, most importantly, take grass (via ones
animals), i.e. the profit of pasture, are all profits.
Note: In Michell v. James (2005) a right to take water was a profit, in the
circumstances, even though there was no coming on to the defendants land for it (as
the water fed into a pipe from the defendants land to the claimants).

8.2 Types
A profit may be:

legal or equitable
appurtenant or in gross
several or in common.

A profit is appurtenant if, like an easement, it is annexed to a dominant tenement. It


is in gross if it is owned independently of land and is unconnected with a dominant
tenement.
A profit is several if it is owned by one person alone; it is in common if it is owned
in common with others.
A profit in common is sometimes referred to merely as a common. An important
example is a common of pasture whereby several landowners have the right to
pasture their animals on anothers land. Land subject to such a common of pasture is
itself sometimes referred to as a common.
Under the 1965 Commons Registration Act, common rights created before 1970 had
to be registered in a county council register of commons or they ceased to be
exercisable. Commons created since must also be registered before they can be
exercised. Registration is now governed by the Commons Act 2006, which replaces
the 1965 Act.

Easements

Paper 2890 Page 27

8.3 Acquisition
A profit may be acquired by:

express grant or reservation;

s.62 LPA;

common law prescription;

lost modern grant (which will be rare in practice) on evidence of 20 years


user;

the Prescription Act 1832 but the relevant periods of enjoyment are 30 years
and 60 years (as opposed to 20 and 40 years) s.1.

Note: Profits cannot be acquired by implied grant under the doctrine of Wheeldon v.
Burrows.
The provisions of the Prescription Act 1832 are not appropriate to profits in gross.

8.4 Examples

A profit of estovers (a right to take wood).


A profit of pasture (a right to graze cattle).
A profit of piscary (a right to take fish).
A profit of turbary (a right to take turf).

Easements

Paper 2890 Page 28

Summary

An easement is a right enjoyed by one landowner over the land of another.

The dominant tenement is the land which has the benefit of the right; the
servient tenement has the burden of the right.

A positive easement gives the right to do something on the servient tenement;


a negative easement gives the right to restrict the use of the servient tenement.

The characteristics of an easement are that there must be a dominant and


servient tenement; the easement must accommodate the dominant tenement;
the two owners must be different persons; the right must be capable of forming
the subject matter of a grant.

A legal easement is one held for a term equivalent to a freehold or leasehold


estate and made by deed or statute. An equitable easement is one which does
not comply with these requirements.

An easement may be acquired by express or implied grant or reservation,


under s.62 LPA, or by prescription.

Interference with an easement may give rise to an action in the tort of


nuisance.

An easement may be extinguished by statute, express or implied release or


common ownership.

A profit prendre is a right to take produce from anothers land.

Profits may be acquired in most of the same ways as easements.

SELF-ASSESSMENT QUESTIONS
1. What are the four essential characteristics of an easement?
2. What are the three requirements for an easement to pass by implication under the
rule in Wheeldon v. Burrows?
3. What is the effect of s.62 of the LPA?
4. What is meant by the phrase nec vi, nec clam, nec precario?
5. What are the three methods of prescription?
6. What is meant by uninterrupted enjoyment in the context of the Prescription Act
1832?
7. What is a profit prendre?

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