Land Law- Easement and Profit

To start off, we should always determine the definitions of legal terms.

Easement, is a right over one piece of land for the benefit of another piece of land. For example, a right to store, right to light etc. 

Whilst, profits a prendre is that a right for a person to go onto the land of another, the servient land and take either part of the natural produce of the land, itself capable of ownership (such as crops, water) or animals.

DISTINGUISH EASEMENTS AND PROFIT

Similarities: Both easements and profits are proprietary interest in land.

Differences: Easement are rights over the land of another whilst profits are the rights to enter the land of another and take the profits of it. 

CHARACTERISTICS OF EASEMENTS

There are four characteristics of an easements, which have been set out from the Re Ellenborough Park

(1) A Dominant Tenement (DT) and a Servient Tenement (ST): The easement must benefit land and there must be two pieces of land.

(2) Diversity of ownership: The DT and ST must be owned or occupied by different persons.

(3) Accommodates the DT: The easement must benefit the DT as such and not the present owner nor activities which the present owner is carrying on.

In the case Hill v Tupper, 

The owner of a canal granted X the exclusive right to put pleasure boats on the canal for profit. However, it was held that the right was just a personal right which did not benefit the land as such.

The question arises from the case, whether a business carried on the land is so closely connected with the land that it does benefit it. 

In the case Moody v Steggels,

The right to put an advertisement on a neighbor's land advertising a pub was held to be an easement. Although the exercise of right provided commercial advantage, the business benefitting (the pub) was seen as normal use of dominat land, having been present on the land over 200 years. With the business and land so entwined, a benefit to the former was also benefit to another. 

After the comparison between two cases, notably that:

(a) whether a right accommodates the dominant tenement is a question of fact,

(b) to accommodate, the DT and ST must be sufficiently proximate to one another, Bailey v Stephens.

(4) Subject of grant: The right claimed must be capable of forming the subject matter of a grant. The basic point is that the right must be sufficiently certain. Bear in mind that:

(a) The rights of lights, water, air etc should be through define channels, Harris v De Pinna

(b) The rights that required cannot be too vague or uncertain, William Aldred's Case

EASEMENT SHOULD NOT INVOLVE THE OWNER OF ST IN POSITIVE AND NEGATIVE OBLIGATIONS

The ST should not be obliged to incur expenses so as to enable DT to enjoy the right, Regis v Redman. However in Crow v Wood, positive easements have been allowed by the spurious easement of fencing, where ST is required to fence his land for the purpose of enclosing livestock.

In Phipps v Pears, a claim was brought to an easement to protection of one house from rain and frost by another house. This would mean that the other house could not be demolished. The claim was rejected. The courts are reluctant to allow the creation of new negative easements which would be an undue restriction on an owner's rights over his hand.

In the meantime, an easement cannot subsequently be used for a different purpose, Jelbert v Davis.

EASEMENT CANNOT AMOUNT TO EXCLUSIVE USE-OUSTER PRINCIPLE

A distinction must be drawn between an easement and a lease or a licence. 

In Copeland v Greenhalf,

The claimant owned land on which the defendant had stored and repaired vehicles for 50 years. He claimed an easement by prescription. This was a claim to beneficial use of the land and so could not be an easement. Judge Upjohn described it as: 'virtually claim to possession of the ST.'

Conversely, in deciding whether the ST has retained reasonable use of ST, consideration must be given as to what amounts to ST. In Wright v Macadam, where a tenant's revocable licence to store coal in a coal shed converted, upon the granting of a new lease, into a legal easements to store. 

CAR PARKING

Whether there can be an easement of the right to park a car has not been definitively settled although there have been cases:

In the case Batchelor v Marlow,
The right to park cars on the ST during weekday working hours was rejected as an easement. Although the ST retained use of the land at night and on weekends, this was not considered reasonable use, especially since the ST related to business premises.

Contrast Batchelor,

In the House of Lords, in the Scottish decision of Moncrieff v Jamieson,
found in favour of finding easement to park. In doing so, Lord Scott criticised the 'reasonable use' test endorsed in the Court of Appeal (CA) decision of Bachelor v Marlow, preferring to ask whether the exercise of the right would leave the ST in 'possession and control' of the ST. 

The question arises whether if there is an easement, then how does the Ouster Principle affect it? Suppose the X claims the right to park her car on a defined space on land that owned by Y. In Moncrieff, Lord Scott in HL proposed the test of whether the ST 'retain possessions and subject to the reasonable exercise of the right question, control of the ST.'

The Law Commission, in its consultation Paper, thought that it was difficult to define control and preferred to ask:' What can the DT do?' Thus, any right must be clearly defined.

EASEMENTS, PROFITS AND THIRD PARTIES
Quick summary:
Registered Land
(1) Legal easements and profits created expressly (by deed) are registerable disposition.
(2) Express legal easements and profits and equitable easements, which were overriding before 13.10.2003 remain overriding
(3) New equitable easements and profits are now minor interest
(4) The only new legal easements and profits that can be overriding are those created:
     a. by impled version
     b. by implied grant (Wheeldon v Burrows or s62 LPA 1925)

     c. by prescription (Schedule 3 para 2)

Unregistered Land

(1) Legal easements are binding on all third parties.
(2) Equitable easements must be registered as land charges of created on or after 1.1.1926. Those created before will bind purchasers who have notice of them and will bind donees automatically.

CREATION OF EASEMENTS
(1)Expressly:
     a. Legal by deed
     b. Equitable by written agreement

(2) Implied reservation in a conveyance
     a. Necessity: such as land-locked Manjang v Drammah, Adealon v Merton
     b. Common intention: such as building a ventilation on the business premises in Wong v Beaumount Property Trust Ltd.

ACQUISITION OF IMPLIED EASEMENTS UNDER THE RULE IN WHEELDON V BURROWS

In Wheeldon v Burrows,
On a grant of land, the grantee (buyer) will acquire, by implication, all easements which:
(1) are continuous and apparent. Hansford v Jago
(2) common ownership and occupation of the potential DT and ST. Kent v Karang
(3) the right must be necessary for the reasonable enjoyment of the DT.

In Wright v Macadam,
The defendant let a flat to the claimant and gave her permission to store coal in it. He later grant her a new tenancy.
The legal principle was that the grant of the tenancy was a conveyance under s62(1) LPA 1925 and as a right to store coal was a right of capable of being granted by law the grant of new tenancy had effect of cenverting what was a licence into an easement.

PRESCRIPTION
Another way of acquiring an easement is by prescription, where it is the acquisition of easements and profits by long use.

The condition must be without Nec Vi, Nec Claim and Nec Precario, which means that the use must without force, secrecy and permission.

Three types of prescriptions:
(1) Common law- DT can claim that he has been exercising the easement since the 'time immemorial' of 1189.

(2) Prescription Act 1832-
Under the s2 PA 1832, where to an easement by prescription requires 20 years continuous use, but where the easement was exercised with the oral agreement of the ST, it is 40 years.

Under the s3 PA 1832, where to claim an easement of light requires of 20 year continuous use. No provision for 20 years where exercised with the permission of the owner.

A claim by prescription is based on a presumed grant and the claim will fail if the presumed grantor had no capacity to grant an easements.

(3) Loss modern grant: This is a way of letting the court assumes two things have not, in fact, occurred:
     a. there was a grant of an easement
     b. it has been lost.

EXAMPLE BASED ON PROFIT 

Tehidy Minerals v Norman

Jacey allows her sheep to graze on Casper's land for many years but did not do so for the last 18 months because they were diseased.

a. no claim to a profit at common law- cannot prove since 1189

b. PA 1832 does not apply here since there was a discontinuous for more than a year (s4), no period of prescription as period not next before action.

c. arguable can rely on the lost common grant. 

EASEMENT VS PROFIT
Note that the following rules on profits and how they are differ from those on easements.
(1) No requirement of a dominant tenement
(2) The rule Wheeldon v Burrows does not apply to the creation of profits but s62(1) LPA does.
(3) The periods of prescriptions are longer
(4) Apart from this, rules are generally the same.

LAW COMMISSION PROPOSAL FOR REFORM
In the Consultation Paper 186, the Law Commission provisionally proposed that:
(1) Any right must clearly defined, or be capable of clear definition and not involve the unrestricted use of the ST.
(2) Easement should no longer be capable of creation by implication under s62(1) LPA 1925. In addition, it asked whether the law on acquisition of easements by implication should be recast into statutory form.
(3) The present rules law on acquisition of easements by prescription should be abolished and replaced by one single method of acquisition by prescription with a proposed period of 20 years. The paper also asked if acquisition by prescription should be possible at all and if it could be replaced by proprietary estoppel, which the Commission does not favour.
(4) Profits should only be acquired by express grant, reservation or statute and not by prescription.
(5) Easements created by implication and easements in unregistered land should be capable of extinguishment after non-use after a set period of time. This would not apply to express easements in registered land.
(6) s84(1) of LRA 1925 should also allow the discharge or modification of easements or profits.

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