EASEMENTS

-DEFINITION: An easement is a right which one party has over the land of another. Easements include a right of way, a
right to access of light to windows, a right to support between adjoining buildings and a right to park vehicles on land.

-CHARACTERISTICS OF AN EASEMENT: In order to constitute an easement a right must the characteristics of an easement
as identified in Re Ellenborough Park: “(1) There must be a dominant and a servient tenement: (2) an easement must
"accommodate" the dominant tenement: (3) dominant and servient owners must be different persons and (4) a right over
land cannot amount to an easement unless it is capable of forming the subject matter of a grant.”

-DOMINANT TENEMENT: is the land which benefits from an easement.

-SERVIENT TENEMENT: is the land over which an easement exists.

-In addition, Re Ellenborough Park outlined three questions which must be answered negatively for an easement to be
capable of forming the subject-matter of a grant: “whether the right conferred is too wide and vague, whether it is
inconsistent with the proprietorship or possession of the alleged servient owners and whether it is a mere right of
recreation without utility or benefit.”

-ACQUISITION OF EASEMENTS: An easement can be acquired by grant, reservation or prescription.

1) GRANT: An easement by grant can be obtained by:

a) express (written deed) grant;
b) by implication
(i) as a result of necessity (such as a right of way to access a roadway);
(ii) in order to give effect to the common intention of the parties to a disposition;
(iii) to prevent a grantor from derogating from his/her grant by denying or preventing the purchaser of use and
enjoyment of the land;
(iv) under Section 40(2) of the Land and Conveyancing Law Reform Act 2009.

-Section 40(2) of the Land and Conveyancing Law Reform Act 2009: The rule in Wheeldon v Burrows provided that
where an owner disposed of part of his land, the law recognised that a quasi-easement may be implied in favour of a
grantee over that part of the land retained by the grantor. A quasi-easement would be implied where such rights were:
(i) continuous and apparent,
(ii) necessary for the reasonable enjoyment of that part of the property disposed of and
(iii) had been used by the grantor up to the date of the grant for the benefit of that part of the land disposed of.
-The rule in Wheeldon v Burrows has been replaced by Section 40(2) of the Land and Conveyancing Law Reform Act
2009 which provides that where the owner of land disposes of part thereof an easement will exist over that part of the
land retained which:
(a) is necessary to the reasonable enjoyment of the part of the land disposed of and
(b) was reasonable for the parties, or would have been if they had adverted to the matter, to assume at the date the
disposition took effect as being included therein.

2) RESERVATION: An easement can be created by express reservation where the owner of land reserves for his benefit an
easement over that part of the land disposed of or by implied reservation in cases of necessity or based on the clear
intention of the parties.

3) PRESCRIPTION: An easement is acquired by prescription where there has been a continuous and uninterrupted use
and enjoyment of any easement for the relevant statutory time period. The relevant user period for an easement created
on or after the 1st December 2009 is 12 years. Where a servient owner is a State authority the relevant user period is 30
years and 60 years where the servient land is foreshore.
-Section 34 of the Land and Conveyancing Law Reform Act 2009 abolishes the following rules on acquisition of an
easement by prescription:
1. Acquisition of an easement by prescription at common law: use of an easement from time immemorial (1189) with a
presumption of usage from 1189 where 20 years use can be established;
2. Acquisition of an easement under the doctrine of lost modern grant: 20 years use of an easement raises a presumption
that a modern grant had been granted but has been lost;
3. Acquisition of an easement under the Prescription Act 1832: 20 years use of an easement up to the date of
proceedings.
-However, pursuant to Section 38(b) of the 2009 Act, a claimant for an easement by prescription can continue to rely on
the rules governing prescription at common law and under the doctrine of the lost modern grant where the action in
which the claim is made is brought by the 1st December 2021.
-The new user period of 12 years will apply in respect of claims after the 1 st December 2021.
-In order to bring a claim under the 2009 Act the relevant user period must be “as of right” and “without interruption” by
the dominant owner.
-“User as of right” is defined as means without force, without secrecy and without the oral or written consent of the
servient owner” and an interruption is defined as “an interference with, or cessation of, the use or enjoyment of an
easement or profit a prendre for a continuous period of at least one year….” (Section 33)
-The user period ceases to run against a servient owner who is incapable of managing his/her affairs due to mental
incapacity unless it is reasonable, in the circumstances of the case, to have expected some other person to have acted on
behalf of the servient owner during the relevant user period or at least 30 years have elapsed since the commencement
of the relevant user period. (Section 37)
-Where the claimant of an easement by prescription holds a tenancy in the dominant tenement the easement will pass
to the landlord when the tenancy comes to an end. (Section 36(1))
-Where the servient owner holds a tenancy in servient tenement an easement acquired by prescription will cease when
the tenancy comes to an end unless the owner of the servient tenement acquires a superior interest in the land or
obtains an extension or renewal of the tenancy. (Section 36(2))
-Section 35 of the 2009 provides that an easement by prescription can be obtained: (a) by court order which is registered
in the Land Registry or Registry of Deeds or (b) on application to the Property Registration Authority under Section 49A
of the where the servient owner does not object and the servient tenement is registered land or the claimant is making
an application to register it.

-PASSING OF AN EASEMENT ON A CONVEYANCE: Section 71(1) of the 2009 Act states that a conveyance of land conveys
with the land easements appertaining or annexed to the land.

-EXTINGUISHMENT OF EASEMENTS AND PROFITS: An easement can be extinguished by:

(a) statute such as a statutory power to compulsorily acquire land;
(b) agreement (express release) entered into between the dominant and servient owner;
(c) abandonment (implied release) by the dominant owner. There must be evidence of an intention to abandonment
permanently. In Orwell Park Management Limited v Henihan, it was held that while mere non-use “can be evidence of
an intention to abandon or release the easement” it is “never in itself sufficient evidence for that purpose”. There must
be evidence of “a fixed intention never again to assert the right.”
(d) a 12 year continuous period of nonuser will extinguish an easement or profit acquired by prescription or by
implication unless any such easement has been registered in the Registry of Deeds or Land Registry. This also applies to
easements and profits acquired prior to the 1 st December 2009 provided that at least 3 years of the period of non-user
occur after that date.
(e) unity of ownership of the dominant and servient tenement.