Proprietary rights in land - Methods for creation of easements

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Overview

Easements play a key role in property law, allowing non-ownership rights over another's land. For SQE1 FLK2 candidates, a strong understanding of easement creation methods is vital. This article covers express grants, implied grants, and prescription, and examines the difference between legal and equitable easements. By understanding these areas, candidates can effectively analyze complex property scenarios.

Understanding Easements: Fundamental Principles

An easement allows one landowner (the dominant tenement) rights over another's land (the servient tenement). To qualify, a right must meet four criteria established in Re Ellenborough Park [1956] Ch 131:

  1. There must be a dominant and a servient tenement.
  2. The easement must benefit the dominant tenement.
  3. Owners of the dominant and servient tenements must be different people.
  4. The right must be capable of being granted.

These criteria are essential for evaluating potential easements in exams and real-world settings.

Methods of Easement Creation

1. Express Grant

An express grant is a straightforward way to create an easement, typically involving a formal agreement executed through a deed.

Key features:

  • Must comply with s.1(2) Law of Property Act 1925
  • Clearly defines the easement's nature, extent, and duration
  • Requires registration at HM Land Registry for legal easements

Example: A homeowner grants their neighbor a right of way across their property to access a public road, documented in a formal deed.

Legal considerations:

  • Validity of the deed
  • Clarity and specificity of terms
  • Registration requirements

2. Implied Grant

Implied grants occur when the law infers an easement despite no express agreement. Two main doctrines guide implied grants:

a) The Rule in Wheeldon v Burrows [1879] 12 Ch D 31:

  • Applies when land is divided and sold
  • Rights must be continuous, apparent, and necessary for reasonable enjoyment

b) S.62 Law of Property Act 1925:

  • Acts as a statutory implied grant
  • Turns pre-existing quasi-easements into legal easements upon conveyance

Example: A landowner sells a portion of their land, and the access road to that portion is entirely on the remaining land. Courts may infer an easement for access.

Key cases:

  • Wheeldon v. Burrows (1879)
  • Regency Villas (1999)
  • Wood v Waddington [2015] EWCA Civ 538

Legal considerations:

  • Degree of necessity
  • Common intention of the parties
  • Prior land use

3. Prescription

Prescriptive easements develop through consistent, unobstructed, long-term use, usually over 20 years. This follows the principle "nec vi, nec clam, nec precario"—without force, secrecy, or permission.

Three methods of prescription:

  1. Common Law Prescription: Based on use since 'time immemorial' (1189)
  2. Lost Modern Grant: Assumes a grant that has been lost, based on 20 years' use
  3. Prescription Act 1832: Provides statutory periods for claiming prescriptive rights

Example: A homeowner uses a path across their neighbor's property to access their own land for over 20 years without permission.

Legal considerations:

  • Continuity and openness of use
  • Absence of force or permission
  • Duration of use

Legal vs. Equitable Easements

Differentiating between legal and equitable easements is vital for SQE1 FLK2 candidates:

Legal Easements

  • Created by deed or statute
  • Must be registered to be enforceable against third parties
  • Bind all subsequent owners of the servient land
  • Offer stronger protection and easier enforcement

Equitable Easements

  • Arise when legal formalities aren't met but fairness dictates recognition
  • Include easements created by contract but not yet granted by deed
  • Enforceability depends on the doctrine of notice
  • May be subject to equitable remedies like specific performance

The case of Walsh v Lonsdale highlights the interplay between these easement types.

Practical Considerations and Modern Trends

  1. Digital Rights: Easements face challenges with digital access rights.
  2. Environmental Concerns: Growing use of easements for conservation purposes.
  3. Development Pressures: Urban growth leading to complex easement arrangements.
  4. E-conveyancing: Digital property transactions affecting easement recording and verification.
  5. Judicial Interpretation: Cases like Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57 expanding easement scope.

Case Study: A Complex Easement Scenario

Landowner A sells part of their land to B. The deed lacks access rights, but B uses a path across A's retained land to reach the main road. After 15 years, A sells their remaining land to C, who attempts to block B's access.

Analysis points:

  1. Potential for an implied grant under Wheeldon v Burrows or s.62 LPA 1925
  2. Consideration of a prescriptive easement based on B's use
  3. Determination of legal or equitable status and enforceability against C

This scenario illustrates the level of analysis needed in the SQE1 FLK2 exam, requiring the combining of multiple easement creation concepts.

Conclusion

A thorough understanding of easement creation methods is essential for success in SQE1 FLK2. Key points to remember:

  • Understand the essential principles and criteria for easements
  • Distinguish between express grants, implied grants, and prescription
  • Identify the differences between legal and equitable easements
  • Consider practical implications and modern trends in easement law
  • Apply knowledge to complex scenarios, analyzing creation, enforcement, and consequences

By building a comprehensive understanding of these principles and their application, candidates will be well-prepared for the SQE1 FLK2 exam and future property law practice.