How are Easements Created?
Easements can be created deliberately or accidentally and can arise in the following ways:
- Express Grant;
- Implication;
- Prescription;
- Lost Modern Grant;
- Necessity
Express Grant
This is the most common method and involves the servient landowner deliberately creating rights by deed, usually in the original conveyance or transfer of the property. For example, if a developer builds an estate of houses and the estate includes a road that it is to remain private it will include a right in each individual property transfer for the owner (and their visitors, workmen etc) of way over the road for the purpose of getting to and from their properties. An easement can only be granted over land owned by the grantor - a person with the benefit of an easement cannot transfer that benefit to another nor grant another the same easement, however if a parcel of land that benefits from an easement is sub-divided that each part will benefit from the same easements as the whole subject to the rules against expansion and intensification (which are explained later in this page).
Implication
In certain circumstances, the law assumes that the parties intend to create an easement where one is required but has not been expressly granted and will therefore imply its existence. There are two methods by which this can be achieved, one based in common law and the other in statute.
Wheeldon v Burrows
The common law rule in Wheeldon v Burrows [1879] states that on the sale of parcel of land out of a larger parcel (so a transfer of part) the transfer is deemed to include any rights that are necessary for the enjoyment of the sold land and are in use at the time of the sale. These rights are known as "quasi-easements" - they would be easements but for the fact that the two parcels of land were in common ownership prior to the sale. This rule will apply unless the rights are expressly excluded (see Exclusion of Easements later).
Section 62 Law of Property Act 1925
S62(1) LPA 1925 reads as follows "A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof." So this confirms the rule in Wheeldon v Burrows (as well as implying that buildings etc are included).
Both of these rules can be useful where a transferee forgets to negotiate to include easements but they should not simply be relied upon in lieu of express grants. Remember that the operation of the provisions can be excluded and anyway they imply the existence of rights that are reasonably necessary, and that were actually in use, at the time of the transfer.
Neither the rule in Wheeldon v Burrows nor s62 operate to reserve rights by implication in favour of a transferor over the land transferred.
Prescription (Long Use)
It is possible for easements to arise as a result of long use. That is to say, if a right has been exercised continuously for a period of 20 years or more, the dominant owner can claim a legal easement over the servient land. There are two routes, both of which have essentially the same rules, the Prescription Act 1832 and the doctrine of lost modern grant. According to the Prescription Act, if it can be shown that an easement has been exercised openly and without consent from or payment to the servient owner for a continuous period of 20 years or more then a legal easement arises as if granted by deed. The same rules apply to the doctrine of lost modern grant except that it relies on a legal fiction - that a deed must have been granted at some time in the past, but then lost.
Claiming Easements by Prescription
In order to claim a prescriptive easement:
- the right claimed must have the characteristics of an easement, i.e. it must satisfy the test in Re Ellenborough Park (see "What is an Easement?" above);
- it must be something that could lawfully have bene granted by deed (so for example a right to discharge untreated waste to a watercourse cannot be claimed by prescription as that would make lawful an activity that would otherwise be unlawful);
- Evidence of the use must be produced;
Evidence is usually in the form of a statutory declaration or statement of truth. It would need to confirm that the right has been exercised:
- continuously;
- openly;
- without consent or payment
Continuous Use
"Continuous" does not imply any specific degree of regularity and will depend on the nature of the easement and how often it would normally be expected to be used. It must be more than occasional, but it could for example be seasonal - accessing neighbouring land a few times each autumn to clear leaves from gutters can qualify as an easement if access is only required during a short window in the year. On the other hand, using a rear accessway that gives access to the property just a handful of times over a 20 year period will probably not. It will be a matter of fact and degree in each case.
Open and Apparent Use
The right must have been exercised openly, not in secret, so that it would have been possible for the servient landowner to discover it and reasonably to assume they would have been aware of it.
Use Must Be Without Consent
The use must be "as of right". In other words the user and servient owner must act as though a legal easement always existed. If the servient owner expressly consent to the use from time to time, or if a payment is made or a licence entered into no easement will arise.
Land Registry Form ST4
Any format of statement of truth or statutory declaration can be used as long as it contains all the necessary information but, especially if the intention is to note the easement at Land Registry, form ST4 (available to download from H M Land Registry) is useful as it helps ensure that all of the requirements are addressed. We are not licensed to reproduce the form here but it should be completed as follows:
Panel 1 - insert the name and address of the person making the statement. This will usually be the owner of the dominant land or their personal representatives. Whoever provides a statement or stat dec, they must do so from their own knowledge, so a PR or attorney can only make a statement if they have personal knowledge - it cannot be based on what the donor/deceased knew or might have known;
Panel 2 - state if you are the legal owner and if you are not, state why the legal owner cannot make the statement;
Panel 3 - if you are applying to register the easement at H M Land Registry, select whether you are registering against the servient land, the dominant land, or both. You can only note the benefit or burden against registered land;
Panel 4 - enter the title number of the dominant land. Leave blank if unregistered;
Panel 5 - describe the land that benefits from the claimed easement. If it has a property address, enter it. Attach a plan (if the land is registered and the easement benefits all of the land then you can use the filed plan). After the words "as shown" say how the land is identified on the plan, for example "edged red";
Panel 6 - enter the title number of the servient land. Leave blank if unregistered;
Panel 7 - describe the land over which the right is exercised. You should limit the description to the specific part of the servient title that is subject to the right and indicate that on the plan, for example "the accessway forming part of 2 Acacia Avenue". On the plan highlight the position, for example by shading the area brown;
Panel 8 - If you know who owns the servient land, enter their names and addresses here. HMLR will contact them to warn them of the registration (if you are applying to register);
Panel 9 - enter the easement as you would like it to be shown in the register. Think about what you want to use the easement for and why, and what you have actually used it for in the past and include any limitations. If it is a right of way over a rear access you might say "A right of way [with or without vehicles] [on foot only] for the purpose gaining access to and egress from 4 Acacia Avenue". Do not attempt to expand on the actual use by including other rights you might wish to exercise in future.
Panel 10 - enter here the details of the right you have exercised and for what purpose, for example "I together with visitors, agents and workmen have used access way forming part of 2 Acacia Avenue to access my property at 4 Acacia Avenue. I have done so at all times of day and night both on foot and with vehicles."
Panel 11 - Enter the date or approximate date the use began and if it has ended, the date it ended (otherwise today) so for example "October 2000 - the present day".
Panel 12 - typically you will check the first box, but only if the statement is true. Otherwise, check the second and enter details but beware that this may lead to failure of the claim.
Panel 13 - if there had been any contact with the owner of the servient land in relation to the claimed easement you should set out the details here. Otherwise write "None".
Panel 14 - if there are any other relevant details not covered elsewhere they should be entered here. Usually there will be none (in which case write "None")
Panel 15 - This is where the person making the statement should sign. This cannot be signed by a conveyancer or attorney on the claimant's behalf.
Challenging a Claim
Once a claim is made, it can be defeated if the servient land owner can show that the evidence presented in support of it is false or incorrect. After a further 20 years however the claim is indefeasible.
Where 20 years' Continuous use Cannot Be Demonstrated
If the claimant has not owned the property for 20 years then in order to demonstrate an easement exists he or she would need to obtain a statement from the previous owner or owners in order to create a chain of statements spanning 20 years. If that cannot be done, and if the property is being sold, an "absence of easement" indemnity insurance policy could be obtained. This would provide financial compensation for the buyer in the event that the servient landowner challenged the use of the easement. The policy would pay for legal expenses incurred in defending the challenge, the cost of purchasing an easement or loss of value in the event an easement cannot be secured.
Necessity
If it can be shown that easement over other land is absolutely necessary for the reasonable enjoyment of the subject land and that the two parcels of land were once in common ownership, it might be possible to claim an easement by necessity. These are notoriously difficult to establish however, particularly if it possible to obtain access (they usually relate to access) via another route, even one that is very circuitous and even where the landowner has to pay for the privilege.
