Exclusion of Easements
When selling off part of a larger title, it is necessary to consider what easements might arise by implication and how they might affect the retained land. For example you may want to change the existing route of access, or you may want to develop the retained land in such a way that might block some of the light that currently reaches the sold land. You would typically do this in a generic fashion, by excluding the operation of s62 of the Law of Property Act 1925 and of the rule in Wheeldon v Burrows. You can use something like "Neither section 62 of the Law of Property Act 1925 nor the rule in Wheeldon v Burrows applies and except as expressly granted the Transferee is not entitled to any right of light or air or any other easement right or privilege which would restrict or interfere with the free use of the Retained Land or any part of it for building or other purposes".
You will need to consider, when purchasing, what rights are actually granted where implied easements are excluded.
Common Issues with Easements
Expansion
In relation to easements, "expansion" occurs where a parcel of land has the benefit of an easement, the landowner acquires some other land immediately adjacent to the land that has the benefit and accesses the new land by using the existing easement, then crossing his benefitting land. At first glance this might seem perfectly reasonable however the default position, established in Harris v Flower [1904] is that a right expressed to benefit one parcel of land (which we will call parcel A) will not benefit another (parcel B). Otherwise the scope for burdening the servient land is potentially limitless. A narrow track intended to be used to access a single property could all of a sudden serve a whole new housing development, thus seriously impairing the servient owner's enjoyment of his land.
There are exceptions however and it will depend on the wording of the easement, the original use of parcel A and the use of parcel B. In Gore v Naheed [2017] it was established that if the use of parcel B is purely ancillary to parcel A (in this case, parcel A contained a dwelling and parcel B, a garage) then expansion may be permitted. If acquiring land adjacent to existing land and access will be required via an existing easement you should not assume that that use will be permitted. You should consider whether it will be possible to obtain a new easement, for the new land.
Intensification
An existing easement, even if granted "at all times and for all purposes" may not be sufficient if the use of the dominant land changes significantly. There are many cases on this point, usually when the owner of the dominant land plans to develop it. Take for example Jelbert v Davis [1968]. In that case the dominant land was accessed via a private road and the dominant owner wanted to use his land as a park for 200 caravans. The servient owner objected and the court agreed, saying that the new use, which was not contemplated when the right was granted, would cause substantial interference to the use of the access by others and would be excessive and unjustified. In other cases, the use has been permitted but limited to a set number of vehicles per day and only at certain times.
Not every change will render the easement unusable however. In Stanning v Baldwin [2019] the access served 6 houses. The dominant owner built 3 additional houses on his land. The court ruled that although the traffic would increase, it would not seriously interfere with the existing users' enjoyment of the access.
Clearly, when developing or changing the use of the dominant land in a way that will increase the flow of traffic over an access (and the same would apply to actions increasing the use of service media such as drains, sewers, septic tanks, private water supplies etc) it is important to consider the effect it will have on the structure of the access itself (will it lead to increased wear and tear or damage?) and the effect it will have on other users, and if there is any doubt professional advice should be sought. It may be necessary to negotiate a new/improved easement.
Restrictions on Servient Title
The grant of an easement is a "disposition" for land registration purposes, therefore if there is a restriction on the title to the servient land, it will need to be complied with before the easement can be registered against either the servient or dominant titles, and it will not be a legal easement until it is so registered. That means for example that if there is a mortgage on the title to the servient land, the consent of the lender will be required or if there is a form B "trust" restriction, the grant will need to be compliance with the terms of the trust.
Extinguishing Easements
From time to time an easement will no longer be required, and it will beneficial to the owner of the servient owner to extinguish it, or else the servient owner will want to do something with the servient land and will want to buy out the easement. This will need to be done by way of a deed of surrender. It will need the consent of all owners of the dominant land against whose titles the benefit is registered (who will need to join in the deed) as well as any mortgagees with charges registered against those estates.
Abandonment
It is possible to infer that an easement has been abandoned by considering the actions of the dominant owner (or a previous dominant owner) however this generally requires some positive action. Failing to exercise the easement for a period of time (even a very long period - 175 years in the case of Benn v Hardinge [1992]) is not enough in itself. Blocking up of an access by the servient owner will not infer abandonment, however long the dominant owner allows that situation to continue, will not do. Creation and thereafter use by the dominant owner of another access might be, as in the case of Williams v Usherwood [1983]. The reality though is that it is not safe to assume that an easement no longer binds the servient land there will be detriment should that assumption turn out to be incorrect.
Unity of Ownership
Where the dominant and servient land comes into common ownership, any easements existing between the two are automatically extinguished (whether or not the titles are merged). This is despite the registrations against the respective titles not being removed. As long as the nature of the of the two parcels of land is not substantially altered however, the easements will be "resurrected" if ownership is once more split, via the operation of s62 Law of Property Act 1925 / the rule in Wheeldon v Burrows (see above).
