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Passing of Benefit and Burden of Easements and Profits à Prendre to Successors in Title

Document Cited authorities 19 Cited in Related
AuthorWilliam Webster/Robert Weatherley
Pages19-22
Chapter 3


Passing of Benefit and Burden of Easements and Profits à Prendre to Successors in Title

EASEMENTS

3.1 This chapter is concerned with the validity of duly created easements on successors in title. A distinction has to be drawn between legal and equitable easements and on whether they relate to registered or unregistered land.

3.2 A legal easement is an interest equivalent to a fee simple absolute in possession or a term of years absolute.1An express grant requires an instrument under seal.2In registered conveyancing, the express grant of an easement will operate only in equity unless it is completed by registration.3The benefit of the easement must therefore be entered in the property register of the dominant land4

(to the benefit of transferees of any part of the original dominant land5) and a corresponding notice in respect of the relevant burden should be entered in the title of the servient owner6(with the burden passing to successors).

3.3 The benefit of a legal easement passes automatically on a transfer of the land to which it is annexed.7In the case of unregistered land, it does not need to be registered as a land charge, and a purchaser of the servient land will take subject to the easement whether or not he has notice.8

3.4 In the case of registered land, it used to be the case that the burden of unregistered legal easements passed as overriding interests by section 70(1)(a) of the Land Registration Act 1925. This has now changed on first registration under paragraph 3(1) of Schedule 3 to the Land Registration Act 2002, which provides (and this should be read with what is said in para 3.6) that on a disposition for value of the registered estate, an unregistered legal easement or profit (but not an equitable easement or profit) will override first registration. However, to this there

1Law of Property Act 1925, s 1(2)(a) and (4).

2Law of Property Act 1925, s 2(1).

3Land Registration Act 1925, ss 19(2) and 22(2); see also Farrand QC, J and Clarke, A, Emmet and Farrand on Title (Sweet & Maxwell, looseleaf) (Emmet and Farrand on Title) at 17.055.

4Land Registration Act 2002, ss 7(2)(d) and 59(1), and Sch 2, para 7(2)(b); Land Registration

Rules 2003 (SI 2003/1417) (LRR 2003), r 5(b)(ii).

5Callard v Beeney [1930] 1 KB 353 at 360–361; Newcomen v Coulson (1877) 5 Ch D 133 at 141.

6Land Registration Act 2002, s 38 and Sch 2, para 7(2)(a); LRR 2003, r 9(a).

7Land Registration Act...

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