7.1.2 Easements and Profits - Creation Lecture
DEFINITIONS OF EASEMENTS AND profits à prendre
An easement is either a positive or negative right of use over land that is owned by another. By positive, we mean a right that the right-holder is allowed to exercise on the land. By negative, we mean a right that the right-holder has to prevent the other landowner from acting in a certain manner over that land. The easement benefits the landowner and their land, the so-called “dominant tenement.” The land over which the right is exercised is called the “servient tenement.”
Profits à prendre, meanwhile, are to do with the right of one party (the owner of the dominant tenement) to take part of the soil, minerals or natural produce that is found on or in land owned by another party (the owner of the servient tenement). This is a right that does not occur in easements. Further, profits à prendre exist “in gross”, which means that the land which comprises the dominant tenement need not be adjacent or neighbouring to the land subject to the servient tenement, whereas with easements there is a requirement for neighbouring or adjacent land.
Profits à prendre entitle the owner of the dominant tenement to take either a part of the land or take parts of things that grow on or in the land or to take living creatures that grow on or in the land or waters within the servient tenement. Water is exceptional in that it cannot be owned (Alfred F Beckett Ltd v Lyons  Ch 449, CA).
PART ONE: CONDITIONS
As we have seen following the definitions of easements and profits à prendre, both these rights are a form of proprietary estoppel, meaning they can act to prevent the servient landowner from restricting the rights accorded to the owner of the dominant tenement in the exercise of that right.
Given the power this accords to a party claiming to have a valid easement or profit à prendre, the court has set out a number of criteria that must be satisfied in order for an alleged easement or profit à prendre to be valid - Re Ellenborough Park  EWCA Civ 4:
- There must be both a dominant tenement and a servient tenement,
- An easement must ‘accommodate’ the dominant tenement,
- The dominant and servient owners must be different persons, and
- The right claimed must be capable of forming the subject matter of a grant.
- There must be a dominant and servient tenement
The two portions of land, though separate, must (for easements) be adjacent and neighbouring to each other, and must be two distinct parcels of land. We say that the benefit accrues to the dominant land, and the servient land is burdened by the easement/profit à prendre (London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd  4 All ER 157). The reason there must be two distinct parcels of land, each either having the benefit or the burden, is that the rights of easements and profits à prendre are “real” rather than “personal” relationships: the rights and liabilities apply to land, not persons. So for example, a person does not acquire an easement to play at a golf club, because there is no dominant land that pertains to the easement (Banstead Downs Golf Club v Customs and Excise Commissioners  VATTR 219, VAT Tr).
This right is subject to the exception of statutory easements.
- The easement must ‘accommodate’ the dominant tenement
In order for the easement/profit à prendre to be valid the right must confer a benefit on the dominant land, not simply the person who owns the dominant land.
This requirement of accommodation also underlines the point about the land being neighbouring or adjacent for easements: it is for example nonsensical to suggest there can be ‘a right of way over land in Kent appurtenant to an estate in Northumberland’ (Bailey v Stephens(1862) 12 CBNS 91 per Byles J).
Alongside this concern that the dominant tenement be accommodated by the easement, there has been some controversy over whether the owner of the dominant tenement may also exercise the rights granted to the dominant tenement over adjacent land owned by the owner of the dominant land.
There is some case law to suggest that the adjacent land (Whiteacre) may benefit from the easement so long as its use is only ‘ancillary’ to the primary benefit which applies to Blackacre (Massey v Boulden  EWCA Civ 1634).
- The dominant and servient tenements must be owned by different persons
Easements are rights that one person has over land owned by another person; therefore, it is nonsensical to suggest a person has a right of an easement to the benefit and detriment of their own land (Peckham v Ellison(2000) 79 P & CR 276, CA per Cazalet J). That being said, there is a distinction between landlords and tenants. Therefore, tenants can acquire an easement over the land to which they have a right of possession yet which is ultimately owned by their landlord.
- Easements and profits à prendre must be capable of forming the subject matter of a grant
The right must be able to be put into a grant by deed. From this point, there are several sub-requirements to comply with in order to satisfy this condition:
- There must be a capable grantor and capable grantee: The persons who create the easement must both be competent and capable of doing so (Wall v Collins  EWCA Civ 444).
- The right must be sufficiently definite: In order for a right to be capable of forming the subject matter of a grant, the alleged easement must be clear in its ambit. E.g. not a good view (Hunter v Canary Wharf  AC 655, HL) or to wander freely (Attorney-General v Antrobus  2 Ch 188, ChD).
- The right must be the kind of right normally granted by easements: Courts are reluctant to add new categories of rights to easements (Hill v Tupper(1863)). The courts are especially reluctant to implicate novel easements that are negative.
- The right must not impose any positive burden on the servient tenement owner: Unless the circumstances are exceptional, an easement cannot require the servient owner to expend money, resources or time in any positive or onerous action (Liverpool County Council v Irwin  AC 239, HL).
- The right cannot deprive the servient owner of all beneficial proprietorship: Rights of easements cannot unduly interfere with the servient owner’s ‘enjoyment of their own land’ (Moncrieff v Jamieson ). The more extensive and far-reaching an alleged easement is, the less likely it is to be upheld by a court (Reilly v Booth(1890) 44 Ch D 12)
An easement would not be enforceable only if it would ‘leave the servient owner without any reasonable use of his land’ (London & Blenheim Estates v Ladbroke Retail Parks Ltd ). Therefore, an easement would be lawful even if it restricted yet did not entirely eliminate the servient owner’s reasonable use of the land. Second, the courts have had some sympathy with this notion, as in Moncrieff v Jamieson .
PART TWO: MECHANICS
Grants and Reservations
The distinction between the two rights is that grants apply to land that has at all relevant times been owned by the servient tenement holder, whereas with reservations the servient land is formerly owned by one party and then, at the moment the land changes hands, the person who formerly owned the land now holds an easement or profit over it.
Legal creation of easements and profits à prendre
Unlike with estate contracts, both easements and profits à prendre can be created (and can therefore operate) at law:
- Status of servient estate: The right must apply against a legal estate in the land.
- Duration: An easement or a profit à prendre has to be set out in a manner that is similar to that found in freeholds and leaseholds (LPA 1925, s.1(2)(a); LRA 2002, s.27(4) Schedule 2 paras 6(3) and 7(1)(a)).
Given that both these types of rights can exist either “in fee simple absolute” or for a “term of years absolute”, it follows that the rights of easement and profits à prendre may exist for an unlimited and undefined period.
- Mode of creation: It must either be created by deed, by statute, by implication, or by prescription.
Modes of Creation
- Deed: Required by LPA 1925 s.52(1)
- Statute: Unlike the usual requirement, statutory easements do not require the presence of an adjoining or neighbouring dominant tenement.
- Implication: A deed of transfer will incorporate by implication all those rights which are granted, therefore because they are part of the deed (see subsection (i) above) they must be legal rights.
If the land is unregistered, the implied easement/profit à prendre is enforceable automatically against any successors in title of the servient land. If the land is registered, the easement/profit à prendre is an overriding interest. The types of implied grant can overlap - refers exclusively to easements, and not to profits à prendre.
There are four kinds of implied easements:
- Easements of necessity: The threshold for such an easement is high (Adealon International Corporation Pty Ltd v Merton LBC  EWCA Civ 362).
The court has limited powers to create temporary rights that resemble an easement. The Access to Neighbouring Land Act 1992 entitles the court to make an ‘access order’ (s.1(1) -(2)).
- Easements of common intention: Ordinarily an easement of common intention would also require that the easement be necessary (Nickerson v Barraclough  Ch 426, CA).
- Quasi-easements: The case of Wheeldon v Burrows(1879) LR 12 Ch D 31 dictates that an easement can apply, from which the grantor cannot derogate, on a subdivision of land. It entitles the holder of the right to exercise the same rights over a given section of land as those rights formerly exercised by the grantor over the same portion of land. So-called ‘quasi-easements’ do not apply in profits à prendre.
- The right must have been enjoyed over prolonged and substantial periods of time, and should have been discoverable on a careful inspection (Hansford v Jago);
- The right must have been reasonably necessary for enjoyment of the alleged dominant tenement (Wheeler v JJ Saunders Ltd  3 WLR 466); and
- Where the owner of the land had previously exercised the right now claimed by the alleged dominant tenement owner, the right needs to have been exercised prior to and up to the date of transfer.
A quasi-easement is advantageous to the owner of such a right for several reasons:
- It enables the owner to exercise those rights which might otherwise be precluded.
- The kinds of rights that a quasi-easement provides for include rights of way, support, and light.
- The doctrine applies to both legal grants and those grants which only apply in equity (Borman v Griffith  1 Ch 493).
- Easements under the Law of Property Act 1925: S62 contains ‘general words’ which, in the absence of any contrary statement or intention included in a given conveyance, will be implied into that conveyance by operation of law. The words enable the holders of existing easements and profits à prendre to continue enjoying the benefit of those rights following conveyance (Kent v Kavanagh  EWCA Civ 162).
One of the significant implications of s.62 is that it carves out an easement or profit à prendre from quasi-easements and even revocable privileges which are subsisting at the time of the conveyance (Peckham v Ellison (2000) per Cazalet J).
Section 62 tends to be engaged where there has been some ‘diversity of ownership or occupation of the quasi-dominant and quasi-servient tenements prior to the conveyance’ (Sovmots Investments Ltd v Secretary of State for the Environment  AC 144 per Lord Edmund-Davies). The presence of two separate tenements is essential, and the absence of such is likely to be fatal to an implication of s.62 (Long v Gowlett  2 Ch 177).
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