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:

  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).
  1. 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:
  1. There must be both a dominant and servient tenement,
  2. The easement must accommodate the dominant tenement,
  3. The dominant and servient tenements must be owned by different persons, and
  4. The right claimed must be capable of forming the subject matter of a grant.
  1. 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:
  1. Easements of necessity,
  2. Easements of common intention,
  3. Quasi-easements as per Wheeldon v Burrows, and
  4. 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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