Creation of Easements and Profits
Author | William Webster/Robert Weatherley |
Pages | 9-18 |
INTRODUCTION
2.1 Easements and profits may be created in the following ways:
(a) by statute;
(b) by express grant or reservation;
(c) by implied grant or reservation;
(d) by prescription.
BY STATUTE
2.2 Local Acts
BY EXPRESS GRANT OR RESERVATION
Grant
2.3 This can be an express grant by deed. No special words are required. The scope of the grant is a question of construction.
Reservation
2.4 This is where a landowner reserves easements or profits over land sold by him for the benefit of any retained land.
10 Restrictions on the Use of Land
BY IMPLIED GRANT OR RESERVATION
Easements of necessity
2.5 Such an easement is implied where the use is essential for the use of the land granted or retained. The dominant land must be ‘absolutely inaccessible or useless’ without the easement.
Easements of intended use
2.6 This is where the parties to the grant shared an intention that the land would be used in a particular manner and where the easement is necessary to give effect to this purpose.
Easements within the rule in Wheeldon v Burrows
2.7 These are easements which are implied in grants of land which are regarded as reasonably necessary or obvious to the parties.
(a) continuous and apparent; (b) necessary for the reasonable enjoyment of the land granted; and (c) which were used by the grantor for the benefit of the part
Hodgson (1855) 10 Exch 824; Barkshire v Grubb (1881) 18 Ch D 616; Huckvale v Aegean Hotels Ltd (1989) 58 P & CR 163 at 168–169, per Nourse LJ; Maud v Thornton [1929] IR 454 at 458, per Meredith J.
Trust [1965] 1 QB 173; Donovan v Rana [2014] EWCA Civ 99, where a drainage easement was found to be necessary to give effect to the inferred common intention of the parties on a transfer of land.
granted. The rule is not confined to rights of way,
Law of Property Act 1925, section 62
2.8 Section 62(1) of the Law of Property Act 1925 operates (by way of express grant) to pass on a conveyance of land ‘all liberties, privileges easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land or any part thereof, or, at the time of the conveyance, … enjoyed with … the land or any part thereof’. Section 62(2) is in similar terms and applies to ‘land, having houses or other buildings thereon’, and any conveyance of such land is deemed to include all ‘cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses or other buildings conveyed …’. Both sub-sections apply if no contrary intention of the parties is expressed in the conveyance or their contract. Section 62 operates to convert quasi-easements into full easements or profits, provided the right in question was enjoyed at the time when the conveyance was made (irrespective of its legal basis) and is capable of existing as an easement. For instance, rights that are merely temporary,
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