Easements — SQE1 FLK2 Land Law

A man sells the workshop at the bottom of his long garden. For years he has reached it by driving down the gravel drive that runs the length of that garden. There is also a narrow side gate, wide enough to walk through and nothing more. The transfer says nothing at all about the drive. When the buyer starts driving down it to deliver materials, he tells her she has no right to be there. Has she? Yes.

Nobody granted it. Nobody wrote it down. Nobody even mentioned it at the sale. And she has a right of way. This is Easements, and it runs on two questions. Which rights over someone else's land can exist as property at all? And how does a right come into being when nobody has granted one? Keep that drive in mind. It comes back.

Here is the route. The four criteria a right must pass before it can be an easement at all, and the two of them that decide cases. Then creation. Express, implied, and prescription. Then the long-use rules, which are where the numbers live. And last, enforcement, and the narrow defences a servient owner actually has.

An easement is a right enjoyed by one piece of land over another. The land with the benefit is the dominant tenement. The land with the burden is the servient tenement. And the crucial thing is that it runs with the land. Your neighbour's right of way over your drive survives both of you selling up. It attaches to the land, not to the owner.

Not every right over land qualifies. Four criteria, from Re Ellenborough Park, and all four must be present. A dominant and a servient tenement. The right must accommodate the dominant land. Different owners. And the right must be capable of forming the subject matter of a grant. Fail one and there is no easement, however carefully the deed was drafted.

Criterion one. Two pieces of land. A right attached to a person rather than to land is a right in gross, and English law does not recognise easements in gross. A dog walker who owns no land is granted, by deed, for life, a right to cross a farmer's meadow. Deed or no deed, that is a licence. It binds the farmer while he owns the meadow and it binds nobody who buys it from him.

Criterion two, and this is where the marks are. The right must accommodate the dominant land. It must make that land better, more convenient or more valuable, not simply make its owner richer. Hill v Tupper is the classic. A man with an exclusive right to hire out pleasure boats on a canal. That right served his trade. It did nothing for his land, so it was a licence and not an easement.

Now the contrast, and it is the sharpest pair in land law. Moody v Steggles. A pub owner fixed a signboard advertising the pub onto the wall of the building next door. Also a commercial right. But the trade advertised was the way the dominant building was used, so the sign accommodated the land itself. Business right benefiting the land, easement. Business right floating free of the land, licence.

Criterion three. Different owners, or at least different occupiers. You cannot have an easement over your own land. Separate ownership is not required, so a landlord can grant his tenant an easement over land the landlord keeps. And where one person ends up owning and occupying both parcels, any existing easement is extinguished by unity of seisin. It does not spring back to life when they are separated again.

Criterion four. The right must be definite enough to be granted. Try four requests from a buyer. That his view across the paddock is never blocked. That nobody in the paddock may look into his garden. That the daylight reaching his garden is never reduced. And that rainwater may go on draining through the pipe that already runs under the paddock. Which of the four can be an easement?

The drain. Route and burden both precisely identified, and drainage is long recognised. The other three fail. There is no easement of prospect, because a view is too wide to define or measure. There is no easement of privacy or against being overlooked, which is a matter for nuisance instead. And a right to light exists only through a defined aperture in a building, never over open ground like a garden.

One more limit on criterion four. The ouster principle. A right so extensive that it leaves the servient owner without reasonable use of, or possession and control over, his land is not an easement. That is why parking is contentious. A right to park six cars all day on a narrow strip failed. A single numbered bay in a car park of forty leaves the freeholder ample use, and passes.

And the list is not closed. The Supreme Court has held that rights granted to holiday apartments to use a golf course, a swimming pool and tennis courts on the adjoining estate were valid easements. For holiday accommodation, recreation is the ordinary use of the land, so recreational rights accommodate it.

So that is whether a right can be an easement. Now how one comes into being. Three routes. Express, implied, prescription. Express is a deed. Implied is where nobody wrote anything down but the law supplies the right anyway. Prescription is long use.

Express first, and it is short. A legal easement is an interest in land, so it must be created by deed. That is section 52 of the Law of Property Act 1925. No deed, no legal easement. But not nothing. A signed written contract containing all the terms, which equity would specifically enforce, creates an equitable easement on those terms, binding the grantor himself.

Implied, and there are four routes in. Necessity first, and it is very narrow. The land must be landlocked, with no legal access at all. Convenience will not do. The Privy Council refused a way of necessity where the plot could be reached from the river, and held that far greater convenience by land was simply irrelevant.

Second, common intention. Where the parties shared an intention that the land be used in a definite way, and the right is necessary to give effect to that use. Wong v Beaumont Property Trust. A basement let expressly as a restaurant, which food hygiene law made it unlawful to run without a ventilation duct fixed to the landlord's building. The Court of Appeal implied an easement to install it. The landlord could not confine the tenant to that use and then deny her the means of carrying it out.

Third, and this is our gravel drive. Wheeldon v Burrows. On a sale of part, the buyer takes those rights the seller was exercising over the retained land for the benefit of the part sold. They must have been continuous and apparent at the date of sale, and necessary for the reasonable enjoyment of what was sold.

A made-up visible drive, used to reach the workshop, and vehicular access needed for a workshop even though a footpath exists. All three limbs met. And the silence of the transfer is what lets the rule work. To exclude it, the parties had to say so.

Fourth, and it is the widest. Section 62 of the Law of Property Act 1925. A conveyance is deemed to convey with the land all liberties, privileges, easements, rights and advantages then enjoyed with it. It needs neither continuity nor apparency nor necessity. And it can turn a permission into a property right. Wright v Macadam. A tenant had permission to keep coal in the landlord's shed. A new tenancy was granted, and the permission became an easement.

Three limits on section 62, and they are examinable. One. It needs a conveyance, which includes a lease granted by deed. Two. It can only operate on something already being enjoyed with the land. If there was no prior use, it has nothing to fasten on. Three. It can be excluded by a contrary intention in the conveyance. And traditionally it required prior diversity of occupation, relaxed where the use was continuous and apparent.

Prescription now, and everything turns on one phrase. As of right. Nec vi, nec clam, nec precario. Without force, so not overcoming an obstruction and not persisting against protest. Without secrecy, so open enough that the owner could have objected. And without permission. A neighbour who writes saying you are welcome to keep crossing has given a licence, and from that moment the use stops counting.

Three routes to prescription. The Prescription Act 1832, lost modern grant, and common law prescription, which needs use since 1189 and is effectively impossible to prove. Take the Act. For light, section 3 gives an absolute and indefeasible right after twenty years without interruption, unless the light was enjoyed by written consent. For other easements, section 2 gives two periods. Twenty years, which can still be defeated, or forty years, which is absolute.

Test it. A farmer has driven his tractor over his neighbour's track for thirty-eight years. Never asked. Never given written permission. The neighbour has grumbled but never blocked it. Has he an absolute and indefeasible right of way? No. Forty is the threshold for the absolute right, and he has thirty-eight. He has a good claim on the shorter period, and a good claim by lost modern grant. What he does not have is a right beyond challenge.

Two more things about the Act. The periods run next before the action in which the right is claimed, so you count backwards from the challenge. And an obstruction is not an interruption unless it has been submitted to or acquiesced in for one year after the claimant had notice of it. A locked gate that has stood eight months, objected to throughout, has broken nothing yet.

Lost modern grant is the flexible one. Twenty years of uninterrupted use as of right, and the court presumes a deed was once granted and has been lost. It applies to any easement capable of grant, and the twenty years need not be the period immediately before the claim. And do not say the presumption can be rebutted by proving no grant was ever made. It cannot. The fiction is deliberate.

Last, enforcement. An easement runs with the land, so the dominant owner can enforce it against whoever now owns the servient land, and the remedies are damages and an injunction. The defences are narrow. Abandonment needs a clear and unequivocal intention to give the right up for good. Seven years of disuse because you built a more convenient entrance is nowhere near it.

And an easement can be used only within the scope of its grant. Back to our workshop buyer. She can drive materials down the gravel drive. She could not turn the workshop into a haulage yard and send lorries down it day and night. A way granted in 1955 for access on foot and with horse-drawn vehicles does not authorise a haulage fleet, and the servient owner gets an injunction against the excess. The easement itself survives.

A word on how SQE1 tests this. You will not be asked to recite section numbers or case names. You get a scenario, five answers, and one instruction. Pick the best. So learn the four criteria and the creation routes. The names here are memory pegs, and one pair of them does real work.

If you keep only three things, keep these. Re Ellenborough Park, the gate every claimed right has to pass through. Then the pair that does the real work. Hill v Tupper, the pleasure boats on the canal. Moody v Steggles, the sign for the pub. Between them they teach you to tell a right that benefits land from one that benefits a business. And Wheeldon v Burrows, with section 62 behind it, for the easement nobody ever wrote down.

Four traps. One. Hill v Tupper is not about the first criterion. Read it carefully. The claimant did hold land beside the canal, so there was a dominant tenement. His right failed on the second criterion, because hiring out pleasure boats benefited his business and not that land.

Two. There is no forty-year rule for light. Light is twenty years, under section 3. The forty-year period belongs to other easements, under section 2. Candidates mix those two sections constantly, and the numbers are the easiest marks in the topic.

Three. Toleration is not permission. A servient owner who knows about the use and simply does nothing is acquiescing, and acquiescence is the very foundation prescription is built on. It is express or implied permission that stops the clock, not a shrug.

Four. Non-use is not abandonment. An easement is a property right, and the courts set the bar high. The dominant owner must have made plain that neither she nor any successor will ever use it again. Years of disuse, on their own, prove nothing.

Quick check. A woman owns a bungalow beside a large field. By deed the field's owner grants her and her successors the exclusive right to put up advertising hoardings along the field's roadside boundary. She keeps whatever the advertisers pay. She lives in the bungalow, but runs her advertising agency from rented offices in the nearest town. No hoarding can be seen from the bungalow. The field is sold, and the buyer takes the hoardings down.

Can she enforce the right against the buyer of the field? Three candidate answers. One. Yes, because the right was granted by deed to her and her successors in title. Two. No, because the right serves her advertising business rather than the use of the bungalow. Three. Yes, because the payments from advertisers make the bungalow more valuable to own. Pause here if you want a moment.

The answer is two. A right accommodates the dominant tenement only if it benefits the land itself. The hoardings cannot even be seen from the bungalow and have nothing to do with living in it. They serve an agency run somewhere else entirely. That is Hill v Tupper, not Moody v Steggles, because the trade advertised is not the way this dominant land is used.

Why the others fail. Option one confuses form with substance. A deed and words of succession cannot make a right an easement if it accommodates no dominant land. Option three uses the wrong test. An incidental increase in the owner's wealth is not the point. The benefit must attach to the land.

Five things to take away. One. Four criteria, and all four must hold. A dominant and a servient tenement, accommodation of the dominant land, different owners, and a right capable of grant. Two. Accommodation decides cases. Benefits the land, not the business, unless the business is carried on at the dominant land.

Three. Three creation routes. Express by deed, implied by necessity, common intention, Wheeldon v Burrows or section 62, and prescription by long use. Four. The numbers. Light, twenty years under section 3. Other easements, twenty or forty under section 2. Lost modern grant, twenty years, and it fits any easement capable of grant.

Five. Enforcement runs with the land, and the defences are narrow. Non-use is not abandonment. And back to our gravel drive. Nobody wrote that right of way down, but it was visible, it was used for the workshop, and the workshop needed it. Wheeldon v Burrows supplied what the transfer left out. Next time, Freehold Covenants.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.