Reform Of The Law Of Easements - Land Law

Reform of the law of easements

Characteristics of an easement : Law Com CP 186 (2008)

• Need for Dominant and Servient tenement

  • At the moment, you need a dominant land to attach easements over a servient land to.

    • Proposed that should allow “easements in gross” i.e. easements over a servient land

      • e.g. right to place power cables or right of way over land to reach helipad that belongs to neither Dom or Serv.

    • Problems:

      • Easements in gross = clogs to title

        • LAW Com: Only allow express creation and make sure easement registered w/ right allowed and person entitled to enforce it

        • Problem = nature of easement = runs with land, not person – would this mean that Z would have to re-create express easement w/ Y if land transferred from X to Z?

      • Lead to servient land being burdened by excessive use

    • Overall = keep rule

      • Rule is certain

      • Statues already get round problem in appropriate cases (e.g. laying utilities)

      • Don’t want to allow easement to be given for anything.

• Accommodation

  • Retain current law b/c

    • Well understood

    • Prevents unnecessary burdening upon land by imposing personal rights into land rights

    • Needs to be available, unlike for leases,

      • b/c leases are temporary in nature

        • whereas easements can be indefinite.

        • Problem = leases can be pretty long

          • And rights within leases can be converted into easements through s.62

          • If not a problem of leases, why problem for easements w/ freehold land in general?

• Owned/Occupied by different people

  • Should adopt that proposed by Scot Law Com:

    • Where two plots w/ easements fall into common ownership

      • Easements should not be extinguished

        • But should become “latent” until plots fall back into common ownership.

  • Problems:

    • Might be difficult to discover “latent” easements =problem for future purchasers

      • Implied grants work already under Wheeldon v Burrows, would perhaps be unnecessary change?

• Capable of Grant

  • Too wide and vague?

    • Current law requires that right be sufficiently defined

      • E.g. doesn’t allow “freeflowing of air” only “right of way across road A”

    • Law Com: 4^th limb appropriate b/c

      • Avoids personal benefits becoming easements

      • Promotes clarity

      • Ensures degree of connection between land and right being granted

  • Easements and exclusive use

    • Wright v Macdam:

      • Not infringing on servient land if using small coal shed in big servient land

      • Different where X actually given exclusive use of large part of servient land.

    • Montcrieff v Jamieson

      • Analysis rejected –ouster should not look at what proportion of land Dom is seemingly possessing and allowing it where only small amount possessed

        • But look at whether Serv can still reasonably use land that has easement over it.

      • Lord Scott: does Serv retain possession and subject to reasonable exercise of right control of Servient land

        • Law Com: not particularly helpful – prefer Lord Neuberger’s objections.

    • Law Com:

      • Q should be = “what can Dom do?” NOT “what can Serv do?”

        • Right must therefore be clearly defined

        • And must be clearly limited in scope

          • Essentially, right for water, storage, parking etc. would be allowed to be easements

            • As long as clearly defined and clearly restricted in scope

        • BUT just b/c right can’t be a tenancy, right to exclusive possession, w/o more, will not defeat easement

          • Otherwise, have illogical problem of X being allowed to park car in space where 2 can be parked, but not in space where only one can be parked.

Implied Grant of Easements: Law Com CP 180 (2008)

• Implied grant and implied reservation

  • No more distinction between grant and reservation

    • If X wants to say that they have an easement it...