Easements & profits

LL.05 — Easements & Profits

What an easement is. A right one landowner enjoys over another's land. The four Re Ellenborough Park requirements must ALL be met:

1. There must be a dominant and servient tenement (two pieces of land).
2. The easement must accommodate the dominant tenement (benefit the land, not just the owner personally).
3. Dominant and servient land must be owned/occupied by different persons (they may be in common ownership if occupation differs — e.g. landlord/tenant — but not common ownership and occupation).
4. The right must be capable of forming the subject matter of a grant — certain, not excessively wide, no expenditure by the servient owner, no exclusive possession that ousts the servient owner. NOTE THE CONFLICT: Batchelor v Marlow (CA) says a right amounting to exclusive use/possession fails; Moncrieff v Jamieson (HL, obiter) doubts this and asks instead whether the servient owner retains reasonable use/control. Batchelor remains binding; Moncrieff is the academic counter-view.

Profit à prendre. A right to take something from the land (e.g. fishing, grazing, timber). Unlike an easement, a profit needs no dominant tenement — it can exist in gross.

Creation.

• Express — by deed (LPA 1925 s.52); a legal easement also needs registration to bind (LRA 2002).
• Implied — four routes: (a) necessity (landlocked land only); (b) common intention (Wong v Beaumont); (c) the rule in Wheeldon v Burrows (quasi-easements on a sale of part — continuous and apparent, necessary for reasonable enjoyment, in use at the date of grant); (d) LPA 1925 s.62 (converts precarious permissions into easements on a conveyance — needs prior diversity of occupation, or a continuous/apparent right per Wood v Waddington).
• Prescription — long use as of right (nec vi, nec clam, nec precario): common law, lost modern grant, or Prescription Act 1832 (20/40-year periods).

Legal vs equitable. Legal only if granted by deed, for a term equivalent to freehold/leasehold (LPA 1925 s.1(2)(a)) — i.e. forever or fixed term. Otherwise equitable.

Binding third parties (registered land, LRA 2002). Express legal easements must be registered (notice on the charges register) to bind. Implied/prescriptive legal easements can override under Sch 3 para 3 (if within the buyer's actual knowledge, obvious on a reasonably careful inspection, or exercised in the year before disposition). Equitable easements need a notice — they do NOT override.

Common traps.

• s.62 needs a conveyance; Wheeldon v Burrows needs a sale of part — don't confuse them.
• Necessity ≠ convenience — landlocked, not merely useful.
• A right to exclusive use/storage fails the grant test (Batchelor v Marlow; cf. the doubt in Moncrieff v Jamieson).
• Easements cannot impose positive obligations on the servient owner (except fencing).