Reforming Easements
In my latest video for YouTube I explain about easements and how they work:
One of the things that I mention is that there are proposals to reform this area of the law. For students writing an essay on this topic, discussion of these suggested changes are a must but what do they actually encompass?
Easements are the right to use land without actually owning it. The classic example is a right of way: you might be allowed to walk across someone’s land but that doesn’t give you any proprietary interest.
An easement will normally come about through an agreement that is recorded in a deed or in writing but there is also another possibility: prescription.
The idea with prescription is that if a right of way or other easement has been in use for a long period of time then the law can step in and make it official. In the classic case of London Tara Hotel Ltd v. Kensington Close Hotel Ltd [2010], a service road had been used for decades. The courts decided that because this was being used without force, secrecy or permission, there could be an easement by prescription.
In some ways this is a good thing because it formalises arrangements that may have existed for years and that one of the parties has come to rely on. If the hotel became unable to use the service road it would have been difficult for it to carry on its business.
On the other hand, this also creates uncertainty in the law because there is no agreement between the parties and yet an easement can spring out of a court judgement. The other problem is that an easement by prescription can come about via one of three different methods:
common law
The Prescription Act 1832
lost modern grants
Common law requires looking back as far as the year 1189; the 1832 Act has been described as “one of the worst drafted Acts on the statute books”; and lost modern grants require the courts to assume that an easement was granted but it was simply lost.
The multiple methods and the fact that none of them are exactly ideal mean that this is an area that is ripe for reform. The Law Commission wants to abolish these methods and instead institute a single, statutory scheme. Such legislation would not therefore remove prescription but it would make things a lot simpler for lawyers and law students alike.
Easements can also be created by implication but this too has the effect of creating an easement where there wasn’t one before. In this situation the courts will look at the whole context of a case and decide whether an easement should be implied because it is necessary or because that was the common intention of the parties even though there was no formal agreement. In Wong v Beaumont Property Trust Ltd [1965] an easement was necessary because otherwise the course of dealing between the two sides would have been rendered meaningless.
The courts are good at only implying easements in a tight range of situations but it still creates more uncertainty in this area of the law. Again, the Law Commission does not want to do away with implication entirely but suggests a single statutory principle whereby “easements will be implied where they are necessary for the reasonable use of the land at the time of the transaction”. To aid the courts, they suggest five factors to consider:
The use of the land at the time of the grant.
The presence on the servient land of any relevant physical features.
Any intention for the future use of the land, known to both parties at the time of the grant.
So far as relevant, the available routes for the easement sought.
The potential interference with the servient land or inconvenience to the servient owner.
Finally, another bane for law students when studying easements comes in the form of section 62 of the Law of Property Act 1925.
On the surface, this seems pretty innocuous. It simply means that upon a conveyance of land, easements are conveyed as well. The problem is that in cases like Wright v Macadam [1949], this has been used to convert mere licences (or permissions) into easements.
This is confusing, it does not appear to be the intention behind the original Act, and it operates as a potential pitfall for landowners. The Law Commission suggests that it is scrapped entirely.
The proposed reforms would certainly make things a lot more simpler and, while they would not remove uncertainty entirely, they would place the law in a better position to identify when easements should be crystalised by the courts.
There is also a new episode of the podcast. This week we discuss a community effort to stop housing being built on land that is subject to a public trust. The council did not comply with the proper procedure but the legislation appears to suggest that this should not make a difference.
Episode link: https://uklawweekly.com/2023-uksc-8/
Make a difference today,
Marcus