An easement is either a positive or restrictive right enjoyed by a property owner, over a piece of land belonging to another. Such rights are of great practical importance to many properties in theUKand can be essential for their enjoyment. A common example of an important easement is a right of way over a neighbour’s land to access your property.
An easement can be created in a number of ways. The most common being an express creation by deed. However, they can also arise through prescription. Although there are various methods used to achieve an easement through prescription, the underlying reasoning for such a process is to grant an easement to those who have used such a right for a long period of time.
An easement may also be acquired by implied grant under the rule in Wheeldon v Burrows. This rule provides that, on a sale of part of a property, there will pass to the buyer in the form of easements, all benefits that are necessary to the reasonable enjoyment of the part sold. This rule will only operate to the extent it is not inconsistent with the intention of the parties.
The Law Commission has recognised that certain areas of the law relating to easements are largely outdated and in need of reform. Below is a more detailed description of the Law Commission’s proposal.
The law concerning prescription allows an easement to be created in one of three ways, these being through common law, lost modern grant or the Prescription Act 1832. The law is old and in some instances arbitrary or arcane. The Law Commission therefore proposes the replacement of the three existing methods of prescription with a single, statutory scheme. The key elements of use for 20 years, without force, stealth or permission would still remain.
Similar to the recommended reform for prescription the Commission also recommends that the three existing methods by which an easement may be implied should be replaced by a statutory test. This would simplify the law while still replicating all the useful instances of implication in the current law
At present an easement cannot be created or exist unless there is a separate ownership of the dominant and servient property. This can give rise to a number of practical difficulties. The Law Commission therefore proposes that, provided that both parcels of land are registered, it should be possible for a landowner to create an easement over his own land. This would be a welcome change in the law for individuals with large residential estates as it would allow the appropriate easements to be created before the plots of land were sold.
At present an easement is extinguished if both the dominant and servient property are purchased by a single person. If the following legislation is passed it would stop such easements being deleted. This is arguably a positive outcome. However, it may also cause easements to arise which were thought to be deleted, causing much uncertainty with landowners.
In theory easements can be extinguished through abandonment, but case law shows that the courts are unwilling to assume that such an easement has been abandoned. The case of Benn v Hardinge is a good example where the fact that an easement had not been used for 175 years was not sufficient to establish abandonment of a right of way, because, the court held, “it might be of significant importance in the future” The Law Commission therefore propose to create a statutory 20 year period, if in this time it can be proven that the right has not been used then the easement in question can be removed.
There are other areas which the Law Commission believes have scope for further review, such as rights to light, but these were beyond the scope of the report. Many of those in the property industry will welcome the legislation of these recommended changes. However, it must be remembered that it is only a report (which can be left on the shelf for many years before being addressed) and only time will tell whether the opinions of the Law Commission will be passed into legislation.
The above is not legal advice; it is intended to provide information of general interest about current legal issues.