Problems with easements - equity to the rescue

March 2011

by Paul Butt LL.B., Solicitor, Consultant, Rowlinsons Solicitors

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Ensuring clients have satisfactory rights of use in cases of easement is a perennial problem for property lawyers. Solicitor and former Professor of Law, Paul Butt argues that, despite rigorous due diligence, things can still go wrong. He highlights some of the hidden bear traps and suggests that the rules of equity may offer a useful means of resolution.

Property lawyers contend with the complexities of the law of easements on a daily basis. In every transaction the questions have to be asked: Does this property have all necessary easements in order to make it suitable for my client's intended use? Is it subject to any easements in favour of others that would render it unsuitable for that use? It is this latter question with which we are now concerned. Despite making the most careful enquiries, it is still possible for clients to find themselves subject to easements that can render their property unusable for their desired purpose.

This fear of the unknown has to be made clear to clients at an early stage of the transaction. It is entirely possible to buy land for development and then find someone coming out of the woodwork claiming that they have a right of way or drainage right through the middle of the development site. This problem arises because many easements are overriding interests, binding on a purchaser of registered land even though they are not on the register of title, and even though they are unknown to the buyer.

The 2002 Land Registration Act has taken some steps to help with this problem, but does not go as far as is sometimes thought. Notably, all easements expressly granted on or after 13th October 2003 must be entered on the Register to be binding. Further, Schedule 3 provides that other easements will only override if they are within the knowledge of a transferee, or are obvious on a reasonably careful inspection of the land, or have been used within the previous 12 months. Note that this last provision still means, though, that even after the closest inspection of the property and the most detailed enquiries of the seller, a buyer could acquire land and find that it is subject to an unknown easement, if use within the previous 12 months can be proved.

Further, there is another large snag to all this tucked away in the detail of the transitional provisions in Schedule 12. This provides (in Paragraph 9) that all easements that were overriding on 13 October 2003 will continue to override, even though they are not within the Schedule 3 conditions. And under the 1925 Land Registration Act (s 70 (1)(a)) ALL legal easements were overriding. This means that easements expressly or impliedly granted, or where the 20-year period of prescription was completed, before 13 October 2003 will remain overriding indefinitely even though they are not obvious on an inspection or have been used within the previous 12 months. The 2002 Act provisions will only apply to those easements created by implied grant since 2003, or where a 20-year prescription period is only completed on or after 13t October 2003. So there is still a continuing risk of acquiring land and, despite the most thorough enquiries, being stuck with unknown and undiscoverable easements over it.

What's more, once created, easements are very difficult to get rid of. There is no statutory procedure (as there is with restrictive covenants) to discharge or amend obsolete easements. And the mere fact that a particular right has not been used for years is also often not relevant; easements can be extinguished by abandonment, but abandonment can be very difficult to establish. As Buckley LJ put it in Gotobed v Pridmore (1971) 217 EG 759, the dominant owner must manifest an intention to abandon the right and, in order to do so, must make clear that its intention is that neither it nor its successors in title should thereafter make any use of the right. He observed that abandonment is not to be lightly inferred because owners of property do not normally wish to divest themselves of property rights unless to do so is to their advantage, even if they have no present use for the property in question.

For recent examples of this principle in operation, see CDC2020 plc v Ferreira [2005] EWCA Civ 611; and Williams and another v Sandy Lane (Chester) Ltd [2006] EWCA Civ 1738. In this latter case, over 25 years' non-user was not sufficient to imply an abandonment.

Nor is it possible, without the consent of the dominant owner, to re-route an easement to a more convenient part of your land where it does not interfere with your own use. As to this, see Heslop v Bishton [2009] EWHC 607 (Ch), where the servient owner as part of a re-routing scheme, unilaterally executed a deed granting an easement over the new route - and was held to be bound by easements over both old and new routes.

However, as a recent case reminds us, the rules of equity may sometimes be of assistance. In Lester v Woodgate [2010] EWCA Civ 199 the Court of Appeal applied the rules of proprietary estoppel to prevent enforcement of an easement.

In 2004, the appellants purchased a property in Looe in Cornwall at auction that had the benefit of outline planning permission for development. A house was subsequently constructed on the land. The auction particulars referred to a disputed easement, namely a right of way on foot and with wheelbarrows over a path that ran across the respondents' property down a slope to the public highway. The right had been created by deed in 1980 and its route had been surfaced in part with a concrete ramp. However, the evidence showed that prior to 1999, parts of the ramp had either collapsed or been removed and, in 1999 or 2000, the remainder of its surface had been removed, part of it had been surfaced as a parking space and a retaining wall had been realigned, thereby substantially interfering with the right of way. The first instance judge had found as a fact that the right of way had become incapable of use prior to 1999.

The appellants brought an action against the respondents for a mandatory injunction requiring the reinstatement of the ramp, an injunction to prevent parking, and substantial damages - over £40,000. The respondents contended that the appellants' predecessor in title had acquiesced in the destruction of the ramp and path and in the extension and resurfacing of the parking space so as to make it inequitable, by reason of equitable estoppel, for the appellants to seek to enforce the right of way in its 1980 form.

The Court of Appeal held that the defence of proprietary estoppel was made out on the facts. The acceptance of the situation by the appellants' predecessor in title amounted to a recognition that the respondents' predecessor would be entitled to use the parking space without interruption by the 1980 right of way. There had been an assurance or encouragement sufficient to found an estoppel, so that it became unconscionable to seek to enforce and reinstate the 1980 right of way. Although proprietary estoppel is normally concerned with the acquisition of rights, the Court of Appeal held that there was no reason why it should also apply in a situation such as this where the estoppel operates to bar the enforcement of legal rights.

It will be noted that this was not just a case of voluntary non-use of the easement. Use had been physically prevented by the actions of the servient owner demolishing the ramp and this action had been acquiesced to by the dominant owner.

Those seeking to physically prevent use of an easement - as well as those with the benefit of such rights - should carefully note these facts. Those with the benefit of easements will thus need to assert their rights and object to any interruption as soon as it occurs, whether or not they have any present use for that easement. Otherwise they will lose it and perhaps regret it later.

Those buying land that they subsequently discover is subject to an easement may also find this decision helpful in defeating a claim to an alleged infringement of that easement. But the overriding interest risk for purchasers will still remain in relation to easements that have simply not been used, rather than where the use has been physically prevented.

“This material is intended to provide general information only. For specific coverage and exclusions, refer to the policy.”

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