By Law Teacher
THE LAW ESSAY PROFESSIONAL
7.1.1 Creation of Easements and Profits – Introduction
Welcome to the first lesson of the seventh chapter in this module guide – Creation of easements and profits. Easements are loosely defined as the right to use another’s land for a specific purpose whereas profit-a-prendre’s are defined as the right to go onto another person’s land and remove something that occurs there naturally. Of course, the conditions and mechanics of these rights are more complicated than this which this chapter will delve into.
At the end of this section, you should be comfortable understanding how easements and profits may be created as well as what they are.
This chapter will first explicitly define easements and profits-a-prendre before moving on to the conditions that must be met for them to exist. Part two of the chapter discusses the mechanics behind the creation of the two, including the various modes and the complicated issues surrounding quasi-easements.
Goals for this Section
- To understand what easements and profits are
- To understand the different modes of creation
Objectives for this Section
- To be able to define easements and profits-a-prendre
- To understand the conditions necessary for the creation of profits and easements
- To understand and be able to apply the different modes of creation
- To understand the rules surrounding the creation of quasi-easements
7.1.2 Easements and Profits – Creation Lecture
DEFINITIONS OF EASEMENTS AND profits à prendre
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 is called the “servient tenement.”
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 or take parts of things that grow on or in the land 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  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 – Re Ellenborough Park  EWCA Civ 4:
- There must be both a dominant tenement and a servient tenement,
- An easement must ‘accommodate’ the dominant tenement,
- The dominant and servient owners must be different persons, and
- The right claimed must be capable of forming the subject matter of a grant.
- 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  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  VATTR 219, VAT Tr).
This right is subject to the exception of statutory easements.
- 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 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).
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.
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  EWCA Civ 1634).
- 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.
- 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:
- There must be a capable grantor and capable grantee: The persons who create the easement must both be competent and capable of doing so (Wall v Collins  EWCA Civ 444).
- 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. E.g. not a good view (Hunter v Canary Wharf  AC 655, HL) or to wander freely (Attorney-General v Antrobus  2 Ch 188, ChD).
- 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)). The courts are especially reluctant to implicate novel easements that are negative.
- The right must not impose any positive burden on the servient tenement owner: 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  AC 239, HL).
- The right cannot deprive the servient owner of all beneficial proprietorship: Rights of easements cannot unduly interfere with the servient owner’s ‘enjoyment of their own land’ (Moncrieff v Jamieson ). The more extensive and far-reaching an alleged easement is, the less likely it is to be upheld by a court (Reilly v Booth(1890) 44 Ch D 12)
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 ). 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 .
PART TWO: MECHANICS
Grants and Reservations
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:
- Status of servient estate: The right must apply against a legal estate in the land.
- 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 (LPA 1925, s.1(2)(a); LRA 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.
- Mode of creation: It must either be created by deed, by statute, by implication, or by prescription.
Modes of Creation
- Deed: Required by LPA 1925 s.52(1)
- Statute: Unlike the usual requirement, statutory easements do not require the presence of an adjoining or neighbouring dominant tenement.
- Implication: 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.
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 – refers exclusively to easements, and not to profits à prendre.
There are four kinds of implied easements:
- Easements of necessity: The threshold for such an easement is high (Adealon International Corporation Pty Ltd v Merton LBC  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’ (s.1(1) -(2)).
- Easements of common intention: Ordinarily an easement of common intention would also require that the easement be necessary (Nickerson v Barraclough  Ch 426, CA).
- Quasi-easements: 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.
- The right must have been enjoyed over prolonged and substantial periods of time, and should have been discoverable on a careful inspection (Hansford v Jago);
- The right must have been reasonably necessary for enjoyment of the alleged dominant tenement (Wheeler v JJ Saunders Ltd  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.
- The kinds of rights that a quasi-easement provides for include rights of way, support, and light.
- The doctrine applies to both legal grants and those grants which only apply in equity (Borman v Griffith  1 Ch 493).
- Easements under the Law of Property Act 1925: S62 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 (Kent v Kavanagh  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  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  2 Ch 177).
7.1.3 Easements and Profits – Creation Lecture – 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:
- 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).
- 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.
- 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.
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.
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.
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.