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Easements

To create an easement do you need to have a deed? Or can you do so orally? What are the relevant parts of the Law of Property Act 1925/Land Registration Act 2002?

Reply 1

lawobiter

An easement may be created by: (i) express grant or reservation; (ii) implication; or (iii) prescription. You have not said if the easement relates to registered or unregistered land?

1. Express Easement: An express grant can only be effected by deed (see: s.52(1) Law of Property Act 1925) for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute (Law of Property Act 1925, 1(2)(a)). Where no deed is used the grant is ineffective in law; however, providing that the requirements of the Law of Property (Miscellaneous Provisions) Act 1989 s.2 are met (in writing and signed), equity may treat the arrangement as a specifically enforceable contract.

With regard to registered land the creation of an express easement by deed over a registered title is a registrable disposition and must be completed by registration to take effect at law. If the land is unregistered, an express legal easement is binding. An equitable easement in relation to unregistered land is a registrable land charge (D (iii) charge) if created on or after 1 January 1926 (LCA 1972, s.2). If it is not registered as a land charge, it will be void against any purchaser of the estate of money (Land Charges Act 1972 s 4)

2. Implied: Such an easement is implied into a transfer of land. Implied easements generally come into existence on sale of property (see Wheeldon v Burrows (1879)). In the case of registered land, implied easements do not have to be registered to take effect at law (Land Registration Act 2002 s 27(7)). Implied easements over unregistered land are legal easements and as such are binding on subsequent owners of the property.

3. Prescription: An easement by prescription is granted by at least 20 years' continuous use. The land must have been used (1) without force ("nec vi"); (2) not by secret ("nec clam"); or (3) without permission ("nec precario"). Easements created by prescription over unregistered land are legal easements and therefore are binding on the owner of the land. Where the land is registered, prescriptive easements take effect as legal interests whether created before or after the implementation of the Land Registration Act 2002.