Easements and Profits Creation Lecture

INTRODUCTION

This chapter will discuss the ways in which both easements and profits à prendre may be created. The ways in which they may be created shall be addressed in detail after the terms “easements” and “profits à prendre” are given working definitions. This chapter will be split into two parts: conditions for the creation of easements and profits à prendre, and the mechanics for the creation of easements and profits à prendre.

In the part entitled ‘Conditions’ we shall examine the necessary conditions for the creation of easements and profits à prendre. In other words, what must parties claiming these rights be able to demonstrate?

In the part entitled ‘Mechanics’ we shall first highlight the two principal methods of creating easements and profits à prendre: grant or reservation. These two methods can give rise to rights that exist at law and not only in equity, provided certain conditions are met. Pursuant to these methods, creation may be achieved either expressly, by implication, or presumed, and the extension of any rights indefinitely or for a fixed period or for any other period of time. Finally, we shall see the means of creation can be formal or informal, and that easements and profits à prendre can be created at law or in equity, depending on the circumstances of the creation of the right.

DEFINITIONS OF EASEMENTS AND profits à prendre

Before we examine both of these sections, we shall first give brief definitions of the concepts of easements and profits à prendre, as this will help to understand what is necessary to bring them about, and also how they are distinct from one another.

An easement is either a positive or negative right of use over land that is owned by another. By positive, we mean a right that the right-holder is allowed to exercise on the land. By negative, we mean a right that the right-holder has to prevent the other landowner from acting in a certain manner over that land. The easement benefits the landowner and their land, the so-called “dominant tenement.” The land over which the right is exercised (and there must be land to exercise the right over) is called the “servient tenement.”

The main example of an easement is a right of way. This is a right that the owner of the dominant tenement has to cross over or pass over the land owned by the servient tenement landowner. For example, if A (the dominant tenement holder) has an easement of a right of way over neighbouring land owned by B (the servient tenement holder), then we can say A is able to e.g. walk across or drive across B’s land and B has no legal basis to stop A from doing so provided that A exercises the right in accordance with the wording of the easement. Easements now also include a right to park a given motor vehicle on the servient land, provided that it is exercised in a manner which is civil and is exercised only to satisfy those needs which are reasonably incidental to the enjoyment of the dominant tenement (Moncrieff v Jamieson [2007] UKHL 42, in which the dominant tenement was practically inaccessible to reach without parking a car on the servient land).

Profits à prendre, meanwhile, are to do with the right of one party (the owner of the dominant tenement) to take part of the soil, minerals or natural produce that is found on or in land owned by another party (the owner of the servient tenement). This is a right that does not occur in easements. Further, profits à prendre exist “in gross”, which means that the land which comprises the dominant tenement need not be adjacent or neighbouring to the land subject to the servient tenement, whereas with easements there is a requirement for neighbouring or adjacent land.

Profits à prendre entitle the owner of the dominant tenement to take either a part of the land itself (such as soil or sand) or take parts of things that grow on or in the land (for example, timber or crops) or to take living creatures that grow on or in the land or waters within the servient tenement. Water is exceptional in that it cannot be owned (Alfred F Beckett Ltd v Lyons [1967] Ch 449, CA).

PART ONE: CONDITIONS

As we have seen following the definitions of easements and profits à prendre, both these rights are a form of proprietary estoppel, meaning they can act to prevent the servient landowner from restricting the rights accorded to the owner of the dominant tenement in the exercise of that right. 

Given the power this accords to a party claiming to have a valid easement or profit à prendre, the court has set out a number of criteria that must be satisfied in order for an alleged easement or profit à prendre to be valid. They were set out by Danckwerts J in Re Ellenborough Park [1955] EWCA Civ 4 as follows:

1. There must be both a dominant tenement and a servient tenement,
2. An easement must ‘accommodate’ the dominant tenement,
3. The dominant and servient owners must be different persons, and
4. The right claimed must be capable of forming the subject matter of a grant.

1. There must be a dominant and servient tenement

The two portions of land, though separate, must (for easements) be adjacent and neighbouring to each other, and must be two distinct parcels of land. We say that the benefit accrues to the dominant land, and the servient land is burdened by the easement/profit à prendre (London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157). The reason there must be two distinct parcels of land, each either having the benefit or the burden, is that the rights of easements and profits à prendre are “real” rather than “personal” relationships: the rights and liabilities apply to land, not persons. So for example, a person does not acquire an easement to play at a golf club, because there is no dominant land that pertains to the easement (Banstead Downs Golf Club v Customs and Excise Commissioners [1974] VATTR 219, VAT Tr).

This right is subject to the exception of statutory easements (see below in the section ‘Legal creation of easements and profits à prendre’).

2. The easement must ‘accommodate’ the dominant tenement

In order for the easement/profit à prendre to be valid the right must confer a benefit on the dominant land, not simply the person who owns the dominant land. This may seem an artificial distinction, because land cannot be said, as a matter of common sense, to “enjoy” benefits accruing from easements or profits à prendre. Nevertheless, this aspect of the conditions for easements and profits à prendre is that the land itself must be benefited, not least because the right is passed to a transferee of the dominant land.

This requirement of accommodation also underlines the point about the land being neighbouring or adjacent for easements: it is for example nonsensical to suggest there can be ‘a right of way over land in Kent appurtenant to an estate in Northumberland’ (Bailey v Stephens (1862) 12 CBNS 91 per Byles J).

Key Points:

• There was a purported agreement alleging an entitlement of “exclusive” use for docking boats in the canal.
• Merely alleging this exclusivity did not warrant the creation of an easement with its proprietary rights.
• The reasons for refusing to enforce the alleged easement were commercial (the prevention of what would otherwise be a monopoly); the lack of a dominant tenement (the land alleged to constitute as such was not directly benefited by the alleged easement); and the alleged right was phrased too broadly.

Alongside this concern that the dominant tenement be accommodated by the easement, there has been some controversy over whether the owner of the dominant tenement may also exercise the rights granted to the dominant tenement over adjacent land owned by the owner of the dominant land. For example, if A has the benefit of an easement over their land, Blackacre, A should also have the benefit of that easement for the adjacent land also owned by A, Whiteacre.

There is some case law to suggest that the adjacent land (Whiteacre) may benefit from the easement so long as its use is only ‘ancillary’ to the primary benefit which applies to Blackacre (Massey v Boulden [2002] EWCA Civ 1634). However, this concept of ‘ancillary’ is rarely and reluctantly applied by the courts (Das v Linden Mews Ltd [2002] EWCA Civ 590).

3. The dominant and servient tenements must be owned by different persons

Easements are rights that one person has over land owned by another person; therefore, it is nonsensical to suggest a person has a right of an easement to the benefit and detriment of their own land (Peckham v Ellison (2000) 79 P & CR 276, CA per Cazalet J). That being said, there is a distinction between landlords and tenants. Therefore, tenants can acquire an easement over the land to which they have a right of possession yet which is ultimately owned by their landlord.

4. Easements and profits à prendre must be capable of forming the subject matter of a grant

The right must be able to be put into a grant by deed. From this point, there are several sub-requirements to comply with in order to satisfy this condition:

1. There must be a capable grantor and capable grantee: The persons who create the easement must both be competent and capable of doing so. An easement can only be created by persons with the leasehold or freehold interests over the land, and no person can seek to create rights that exceed their own proprietary interests (Wall v Collins [2007] EWCA Civ 444).
2. The right must be sufficiently definite: In order for a right to be capable of forming the subject matter of a grant, the alleged easement must be clear in its ambit. Therefore, those rights which are too broadly phrased or ill-defined cannot form the subject matter of a grant. We saw this in Hill v Tupper (1863). There is therefore no easement which grants the alleged dominant tenement owner the right to a good view (Hunter v Canary Wharf [1997] AC 655, HL). The right to a good view may only be attained by way of a restrictive covenant that controls construction activities.

Equally, the right to wander freely over another’s land is also too broad because it is said to confer a merely personal benefit because it empowers the dominant tenement owner rather than the dominant tenement (Attorney-General v Antrobus [1905] 2 Ch 188, ChD).

3. The right must be the kind of right normally granted by easements: Courts are reluctant to add new categories of rights to easements (Hill v Tupper (1863)), so if an alleged easement points to a right that has not been hitherto recognised as an easement, the court is unlikely to establish it is an easement, such as the alleged right to hit cricket balls into a neighbouring “servient” land (Miller v Jackson [1977] QB 966, CA).

The courts are especially reluctant to implicate novel easements that are negative, meaning those easements which refrain the servient tenement owner from doing something on their land (Hunter v Canary Wharf [1997] per Lord Hope of Craighead). Therefore, an easement requiring protection from the weather has been found to be illegitimate, because such an easement would prohibit entirely lawful development on the “servient” land (Phipps v Pears [1965] 1 QB 76, CA).

4. The right must not impose any positive burden on the servient tenement owner: An easement will typically only require the servient tenement owner to allow the dominant tenement to exercise the right enshrined in the easement without interference, such as the right for the dominant tenement owner to park their vehicle on the servient tenement owner’s land. Following on from this, unless the circumstances are exceptional, an easement cannot require the servient owner to expend money, resources or time in any positive or onerous action (Liverpool County Council v Irwin [1977] AC 239, HL per Lord Wilberforce). Therefore, no easement can be created that requires the servient tenement owner to maintain a supply of water or electricity for example; but equally, the servient tenement owner may be required to not interfere with an existing utilities supply (Duffy v Lamb (1997) 75 P & CR 364, CA).
5. The right cannot deprive the servient owner of all beneficial proprietorship: An easement cannot displace the possessory rights claimed by a servient tenement owner; if a dominant tenement owner intends to take possessory rights over the servient tenement land, they cannot do so by way of an easement, but rather by freehold or leasehold ownership. Rights of easements cannot unduly interfere with the servient owner’s ‘enjoyment of their own land’ (Moncrieff v Jamieson [2007] per Lord Scott of Foscote). The more extensive and far-reaching an alleged easement is, the less likely it is to be upheld by a court, especially where the alleged easement purports to give the dominant tenement owner ‘exclusive and unrestricted use of a piece of land’ (Reilly v Booth (1890) 44 Ch D 12, CA per Lord Lopes CJ). It follows that an easement which purports to allow the servient owner to access their land by invitation only from the dominant tenement owner cannot be a valid easement (Hanina v Morland (2000) 97(47) LSG 41, CA).

This aspect of making the right capable of forming the subject matter of a grant has undergone some formulation throughout case law. First, an easement would not be enforceable only if it would ‘leave the servient owner without any reasonable use of his land’ (London & Blenheim Estates v Ladbroke Retail Parks Ltd [1993]). Therefore, an easement would be lawful even if it restricted yet did not entirely eliminate the servient owner’s reasonable use of the land.

Second, the courts have had some sympathy with this notion, as in Moncrieff v Jamieson [2007] where Lord Scott of Foscote said there was no reason ‘why a landowner should not grant rights of a servitudal [sic] character over his land to any extent that he wishes.’ The House of Lords reasoned that an easement which partially excluded the servient owner would be permissible so long as it did not preclude the servient owner’s ‘possession and control’ of their land. This principle was reflected in an earlier case in which the court reasoned that a servient owner cannot be left with ‘no more than a shadow of ownership and possession’ (Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525)..

Key Points:

• The relevant portion of land was used almost exclusively by the person claiming to hold the benefit of an easement.
• The right was deemed too far-reaching: it gave the purported dominant owner the ‘whole beneficial user’ of that portion of land.
• Given the way in which the land was used (i.e. to permanently store vehicles as part of the “dominant owner’s” business), the right so claimed amounted to ‘virtually a claim of possession.’

PART TWO: MECHANICS

Grants and Reservations

Grants arise where B creates in favour of A an easement or profit à prendre over the land owned by B. Where the right is an easement, A of course must hold a portion of dominant land that is capable of deriving the benefit of the easement.

Reservations meanwhile occur when the owner of the given land B disposes of part of that land to A, on condition that B will be able to nevertheless exercise an easement or profit over that disposed land. Thus the distinction between the two rights is that grants apply to land that has at all relevant times been owned by the servient tenement holder, whereas with reservations the servient land is formerly owned by one party and then, at the moment the land changes hands, the person who formerly owned the land now holds an easement or profit over it.

Legal creation of easements and profits à prendre

Unlike with estate contracts, both easements and profits à prendre can be created (and can therefore operate) at law. The creation and operation of such rights at law requires the fulfilment of certain conditions:

1. Status of servient estate: The right must apply against a legal estate in the land, such as a fee simple. If the right is created against an equitable estate, the right invariably and inevitably is equitable only.
2. Duration: An easement or a profit à prendre has to be set out in a manner that is similar to that found in freeholds and leaseholds, i.e. that the entitlement has to be set out ‘for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute’ (Law of Property Act 1925, s.1(2)(a); Land Registration Act 2002, s.27(4) Schedule 2 paras 6(3) and 7(1)(a)).

Given that both these types of rights can exist either “in fee simple absolute” or for a “term of years absolute”, it follows that the rights of easement and profits à prendre may exist for an unlimited and undefined period. What should be noted is that if an easement or profit à prendre is created for an indeterminate period other than in perpetuity, for example if it said to subsist for life rather than indefinitely or for 100 years, then it will take effect in equity only.

3. Mode of creation: In order for an easement or profit à prendre to exist at law it must be created in one of four ways. It must either be created by deed, by statute, by implication, or by prescription. The first three methods are discussed further below. The method of prescription is addressed in the next chapter on Prescription.

Modes of Creation

As mentioned in the above section, an easement or profit à prendre can be rendered as a legal right so long as, inter alia, the easement or profit à prendre is created in one of the approved methods. Prescription is one of those methods but is not discussed here as it is addressed in full in the chapter ‘Acquisition by Prescription.’

1. Deed: Any conveyance of a legal estate, which will either include a pre-existing easement/profit à prendre or will introduce such a right, must be contained in a deed in order to be valid. This is required by the Law of Property Act 1925, which requires (at s.52(1)) that ‘all conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.’
2. Statute: Both easements and profits à prendre are capable of being created by statute. Statute is especially useful for the creation of easements where those rights are created for the benefit of public or private service utilities companies as they maintain and administer supplies of gas, electricity and water. Unlike the usual requirement, statutory easements do not require the presence of an adjoining or neighbouring dominant tenement.
3. Implication: There are certain circumstances in which the granting of an easement can be implied or inferred on the part of the transferee of land (that is, the person receiving the transfer). A deed of transfer will incorporate by implication all those rights which are granted, therefore because they are part of the deed (see subsection (i) above) they must be legal rights. It follows that the rights therefore become enforceable on the basis of the deed transfer.

If the land is unregistered, the implied easement/profit à prendre is enforceable automatically against any successors in title of the servient land. If the land is registered, the easement/profit à prendre is an overriding interest. The types of implied grant can overlap, nevertheless they all retain a central principle: a grantor ‘may not derogate from his grant’, meaning the person making the grant cannot set the terms of the grant to be such that the terms undermine the very purpose of the grant. Implication here refers exclusively to easements, and not to profits à prendre. However, a right cannot be converted into an implied easement if the subject matter does not satisfy the Re Ellenborough Park criteria (see under the section entitled ‘Conditions’).

Implication

There are four kinds of implied easements:

1. Easements of necessity: Such an easement exists where the owner of the dominant tenement cannot possibly exercise their rights over the dominant land without the presence of an easement. The threshold for such an easement is high: even if an easement is reasonably necessary for the proper enjoyment of the alleged dominant tenement, the court will not infer an easement of necessity (Adealon International Corporation Pty Ltd v Merton LBC [2007] EWCA Civ 362).

The court has limited powers to create temporary rights that resemble an easement. The Access to Neighbouring Land Act 1992 entitles the court to make an ‘access order’ (as per s.1(1)-(2)): these orders entitle the recipient of the order to access adjoining or neighbouring land in order to undertake certain kinds of preservation works for property and buildings.

2. Easements of common intention: An easement may be implied in order to give effect to a prior understanding of the parties. That said, ordinarily an easement of common intention would also require that the easement be necessary (Nickerson v Barraclough [1981] Ch 426, CA per Megarry V-C).

Key Points:

• The tenant had entered into a covenant for the restaurant (the dominant land).
• The covenant required the installation and use of a certain kind of equipment.
• The equipment required that it run through separate property (the servient land).
• As such, the parties had impliedly shared a common intention, because both parties, in contracting for the lease, would have intended that the tenant be able to comply with the covenants.

3. Quasi-easements (the Wheeldon v Burrows rule): The case of Wheeldon v Burrows (1879) LR 12 Ch D 31 dictates that an easement can apply, from which the grantor cannot derogate, on a subdivision of land. It entitles the holder of the right to exercise the same rights over a given section of land as those rights formerly exercised by the grantor over the same portion of land. So-called ‘quasi-easements’ do not apply in profits à prendre.

There are several requirements for establishing the validity of a quasi-easement:

• The right must have been enjoyed over prolonged and substantial periods of time, and should have been discoverable on a careful inspection; this criterion is known as the ‘continuous and apparent user’ (Hansford v Jago );
• The right must have been reasonably necessary for enjoyment of the alleged dominant tenement (Wheeler v JJ Saunders Ltd [1995] 3 WLR 466); and
• Where the owner of the land had previously exercised the right now claimed by the alleged dominant tenement owner, the right needs to have been exercised prior to and up to the date of transfer.

A quasi-easement is advantageous to the owner of such a right for several reasons:

• It enables the owner to exercise those rights which might otherwise be precluded because they - the rights being exercised - would suggest pretensions of ownership over the land.
• The kinds of rights that a quasi-easement provides for include rights of way, support, and light, as well as those rights ‘enjoyed de facto during unity of possession [which] would, had that unity not existed, have been easements’ (Nelson v Walker(1910) 10,CLR 560 (HC of Australia) per Isaacs J).
• The doctrine applies to both legal grants and those grants which only apply in equity (Borman v Griffith [1930] 1 Ch 493).

4. Easements under the Law of Property Act 1925: The word-saving provision of s.62 of the Law of Property Act 1925 is another means of implying an easement or a profit à prendre. That section contains ‘general words’ which, in the absence of any contrary statement or intention included in a given conveyance, will be implied into that conveyance by operation of law. The words enable the holders of existing easements and profits à prendre to continue enjoying the benefit of those rights following conveyance, as well as those ‘liberties, privileges… rights, and advantages’ which relate to the land being conveyed at the date of the conveyance (Kent v Kavanagh [2006] EWCA Civ 162).

One of the significant implications of s.62 is that it carves out an easement or profit à prendre from quasi-easements and even revocable privileges which are subsisting at the time of the conveyance (Peckham v Ellison (2000) per Cazalet J).

Section 62 tends to be engaged where there has been some ‘diversity of ownership or occupation of the quasi-dominant and quasi-servient tenements prior to the conveyance’ (Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 per Lord Edmund-Davies). The presence of two separate tenements is essential, and the absence of such is likely to be fatal to an implication of s.62 (Long v Gowlett [1923] 2 Ch 177). If separate occupation ceases and the parties commonly occupy the land, such rights as granted under s.62 will be void (Payne v Inwood(1996) 74 P & CR 42). The exception to this is found in the following case, discussed in focus:

Key Points:

• An area of land was transferred by one party to another.
• The property on the given area of land was to be used for the same purpose, i.e. running a hotel.
• The transferees of the land (P&S) had the option of purchasing adjacent land separately but had failed to do so.
• Prior to the transfer, the adjacent land had been used for the exercise of various rights, such as fishing.
• Because the rights exercised over that adjacent land had occurred ‘continuously and apparently’, and ‘appertained to’ and were ‘enjoyed with’ the purchased land, the purchasers were deemed to have a right of easement over that adjacent land despite the failure to purchase it.

CREATION OF EASEMENTS: HANDS-ON EXAMPLES

The sections set out above discuss two concepts: the necessary conditions for an easement, and the means by which an easement is created. This section provides a series of problem questions that probe different areas of the matters we have just been examining. The answers to the questions can be found at the bottom of the page, however you are encouraged to attempt to answer the questions first based on your own recall or notes of the topic before looking at the answers.

There are essentially three steps to answering questions relating to easements:

1. The first is the need to identify that the right claimed is alleged to be (or may be interpreted as) an easement or a profit à prendre. Depending on the answer, you will able to determine which of the following questions apply (recalling, for example, that profits à prendre do not require adjacent or neighbouring land for the dominant tenement).
2. The second step is to ask whether the alleged easement or profit à prendre satisfies the Re Ellenborough Park criteria. As a quick reminder, those criteria are:
• There must be both a dominant and servient tenement,
• The easement must accommodate the dominant tenement,
• The dominant and servient tenements must be owned by different persons, and
• The right claimed must be capable of forming the subject matter of a grant.
3. The third step is to examine how the right has arisen. It may have arisen by deed or by statute, and you should certainly be aware of these possibilities. However, as you will likely only have one question (or at most two questions) on easements in an exam, the problem question will likely be directed to matters of implied easements. Therefore, if it is an implied easement, recall the four kinds of implied easement:
   • Easements of necessity,
   • Easements of common intention,
   • Quasi-easements as per Wheeldon v Burrows, and
   • Easements as per s.62 of the Law of Property Act 1925.

Q1. Alan purchases the ground floor of a property owned by Business Plc. Business Plc retains control of the floors above. Alan intends to open a restaurant in the newly-purchased portion of the land, and in the course of doing so discovers that he needs to install a special air conditioning unit as required by health and safety regulations. Alan had covenanted to comply with all such regulations at the time of purchase. The air conditioning unit needs some of its wiring to run through the floors owned by Business Plc.

Advise Alan.

Q2. Alan is also looking at setting up his utilities for the restaurant. He notes that Business Plc already have the necessary piping and wiring for water, electricity, and gas for the floors of the building still owned by Business Plc. He could get the utilities installed separately (i.e. without needing access to the floors owned by Business Plc), nevertheless Alan asks Business Plc if they will consider installing similar utilities connections on his behalf through their floors to his restaurant, but Business Plc say it is not their responsibility.

Advise Alan.

Q3. Charlie enjoys the view of the lake from his property, Greenacre. Delia owns the neighbouring plot of land. Delia informs Charlie that she has just received planning permission to construct a new set of houses on her plot of land. When Charlie sees the plans, he realises the houses will disrupt his view. He comes to you for advice, saying he’s sure a lawyer friend told him that he can get an easement to prevent the construction.

Q4. Excavators Inc, based in Northampton are looking to mine new resources as part of their business. They have learned that the water of a particular lake in Cornwall would be especially profitable given its unique properties. They approach the equitable owner of the land on which the lake sits, Francis, to ask if they may be given special permission to take the water from the land.

Advise Francis.

A1. This is a revised version of the case of Wong v Beaumont Property Trust Ltd. In that case, you will recall the court considered implying an easement of common intention: both the parties were taken to have intended that Wong would be able to comply with the relevant regulations, and in the course of such compliance, Wong had to have access to the parts of the land owned by Beaumont. And as you will recall from that case, an easement was indeed implied.

A2. Unlike in Q1, the person with the alleged dominant tenement (Alan) is looking to require the owners of the servient tenement (Business Plc) to actively do something to the servient land rather than simply allow Alan to do something on their land. As you will recall, any easement that requires the servient tenement owner to actively and positively expend time, resources and money on an activity is not a valid easement (Liverpool County Council v Irwin). Therefore, any such attempt at an easement would fail.

A3. Charlie is in this instance looking to acquire an easement of retaining a good view of the lake. The problem for Charlie, as per Hunter v Canary Wharf, is that the right is too broad, too ill-defined, and in any event does not belong to the class of rights which have classically been defined as an easement. Charlie’s hopes for an easement would therefore fail.

A4. There are two clues in this question that the type of right claimed is a profit à prendre. First, the locations suggest that the land would not be adjacent or neighbouring. Second, Excavators Inc is looking to take a natural resource from the land. You should note these relevant characteristics, while also noting that Excavators Inc cannot actually acquire a profit à prendre for the water because water is a resource that cannot be the subject of a profit à prendre as per Alfred F Beckett Ltd v Lyons.

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