Prime examples of express purported easements which will only be upheld on particular facts are the use of a communal garden with a public dimension,[1] a neighbour's lavatory, or use of parts of another person's land for parking.
[6] It was recognised in Re Ellenborough Park however that an easement need not be over an adjacent property, though there must clearly be some reasonable connection in which the dominant tenement can be benefitted.
Natural rights are only actionable after the fact – where damage has already occurred; the neighbouring landowner cannot be compelled to take preventative steps or give support in any particular fashion.
These are now regulated by the Commons Act 2006 which laid down a system of exclusive registration – all rights must now be registered if they are to operate.
Therefore, for an express legal easement (which will automatically bind all successors) to be formed rather than simply equitable it must have been created by deed.
Two plots sold at the same auction will fall under provision, for example, but a period of a month between contracts is too long.
Where land is transferred, subject to contrary intention, existing easements are automatically conveyed under Section 62 of the Law of Property Act 1925.
[22] The first of these categories covers those cases where the land would be landlocked but for the proposed easement, but seems to extend no further than that.
A claim of necessity will not be defeated by an access provided by revokable licence, or where a building would need to be demolished to use it.
[23] In Nickerson v Barraclough, the Court of Appeal decided that the necessity requirement was based on the presumed intention of the parties at the time of the grant.
It should therefore follow that subsequent events cannot destroy an easement arising by implied reservation, although one pre-Victorian case suggested that it might.
The court decided to imply a grant in that case because it was necessary for the carrying on the business required in the lease.
As stated by Lord Atkinson in that case, it must be necessary, not merely reasonable or common in properties of that type or in that location.
To have done so it must meet the criteria of an easement, and the claimant must be able to show the use was not by force, stealth, or by permission, and continued for a period of twenty years.
The statement of truth or statutory declaration must set out in detail the use and enjoyment relied upon to substantiate the claim.
The Land Registry has form ST4, for a typical statement of truth related to prescriptive easements.
This includes easements for periods of uncertain duration, such as those ending when a particular event happens (the passing of planning permission over one of the tenements, for example).
[33] More controversially this category also includes easements for life, similarly incapable of existing at law.
Although the topic has not arisen in the courts since at least 1925, it is difficult to show that as easement for life accommodated the dominant tenement, since it is inherently personal in nature.
Where there is a will, legal title vests in the executors of the estate until transferred to the deceased's personal representatives, but any devised interests operate at equity from the time of disposition.
[37] A fourth category, equitable easements arising by virtue of proprietary estoppel, is contested.
Cases such as ER Ives Investments Ltd v High and Crabb v Arun District Council have been offered in support of their existence; however, some commentators prefer to analyse these cases as giving rise to a right distinct from an easement or a legal easement respectively.
[41] Rule 250(1) allows for easements to arise in equity through prescription where the title is registered, but a right arising through prescription would be created as a legal easement and there seems to be no part of this process where the owner of the dominant tenement has a right in equity only.
On the one hand, it would seem odd that a mere licence could become a legal easement through the section, when the much closer equitable easement could not; on the other hand, construing the section in this way is unnecessary from the perspective of the purchaser, since a right enforceable in equity will be almost as useful as one enforceable at common law.
[44] An equitable easement when the servient tenement is unregistered is enforceable against a purchaser for value only when properly registered under the terms of the Land Charges Act 1972.
[45] Where the servient tenement is registered, the registration of an equitable easement at the Land Registry can take place through mere notice or caution and will then bind purchasers.
The person entitled to the easement must not only have stopped exercising it, but also to have “demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else”[52] The circumstances that are claimed to amount to abandonment must be set out in a statutory declaration or Statement of Truth.