Land Law Essay Help: Other Estates in Land

Land Law Cases referred to in this section:
Adair v National Trust for Places of Historic Interest or Natural Beauty [1998] NI 33
ER Ives Investment Ltd v High [1967] 2 QB 379, [1967] 1 All ER 504, CA
Hawkins v Rutter [1892] 1 QB 668, DC
Poster v Slough Estates Ltd [1969] 1 Ch 495
Roe v Siddons (1888) 22 QBD 224

Easements
An easement is a positive or negative right to derive some limited advantage from the land of another. The easement cannot 'exist in gross' and must be annexed to the land in that it is attached to one parcel of land (the dominant tenement) and must be exercisable over another parcel of land (the servient tenement) (Hawkins v Rutter [1892] 1 QB 668, DC). The easement allows the dominant owner to use the servient land in a particular way, or to stop the owner of the servient land from using his land in a certain way (there is very little difference between such an easement and a restrictive covenant - the difference being that a negative easement will usually require that the servient tenement use his land in such a way so as not to affect some advantage to the dominant tenement, such as a right to support).

An easement is different from a profit a prendre because it does not go so far as to allow the taking of produce from another's land. So a right, for example, to "enter onto the land to collect firewood" would consist of both a profit a prendre (the taking of firewood) and an easement (entering onto the land) ancilliary to the grant - the easement would not usually be expressed to be an easement but taken as implied from the grant of the profit.

An easement can also be distinguished from a natural right which does not need to be granted, such as the right to support for land, and the right to enjoyment of water flowing naturally in a defined channel.

Legal easements
Since 1926 the only easements capable of subsisting at law are easements for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute (Law of Property Act 1925 s 1(2)(a)). A legal easement is an easement capable of subsisting at law which has been validly created at law (Law of Property Act 1925 ss 1(4), 205(1)(x) as amended by the Trusts of Land and Appointment of Trustees Act 1996 s 25(2), Sch 4), namely by statute, deed or prescription3. An easement which does not take effect as a legal easement takes effect as an equitable interest and is called an equitable easement.

Equitable easements
 An equitable easement is a proprietary interest in land such as would before 1926 have been recognised as capable of being conveyed or created at law, but which now takes effect only as an equitable interest (Poster v Slough Estates Ltd [1969] 1 Ch 495 at 507, [1968] 3 All ER 257 at 262). The class of equitable easements includes those easements which, if created in the same manner before 1926, would have taken effect as legal easements, but which by virtue of the Law of Property Act 1925 s 1(2)(a) are no longer capable of subsisting at law and thus take effect, if at all, as equitable interests (ER Ives Investment Ltd v High [1967] 2 QB 379, [1967] 1 All ER 504, CA).

Quasi easements
If the owner and occupier of both dominant and servient tenements is the same, and they exercise some right over one tenement which would constitute an easement if the two tenements were in different ownership, there is no easement, for he is simply exercising his rights as owner of both properties (Roe v Siddons (1888) 22 QBD 224 at 236, CA, per Fry LJ). However, there is commonly said to be a quasi-easement which in some circumstances can become a true easement.

Profits a Prendre
A profit a prendre entitles the holder to take something off another person's land. It can be more fully defined as a right to enter another's land and to take some profit of the soil, or a portion of the soil itself, for the use of the owner of the right. A profit à prendre is a servitude. The grant of a profit comes with it any rights necessary and ancilliary for the enjoyment of the grant.

The subject matter of the profit may be animals, including fish and fowl, vegetable matter growing or deposited on the land by some agency other than that of man, or of any part of the soil itself, including mineral accretions to the soil by natural forces. The right may extend to the taking of the whole of such animal or vegetable matters or merely a part of them. Rights that have been established previously include to take acorns and beech mast, brakes, fern, heather and litter, thorns, turf and peat, boughs and branches of growing trees, rushes, freshwater fish, stone, sand and shingle from the seashore and ice from a canal. A profit may also be the right of pasture and of shooting pheasants. The right to take wild animals while they are upon the soil belongs to the owner of the soil, who may grant to others as a profit à prendre a right to come and take them by a grant of hunting, shooting, fowling and so forth.

Note that there is already a right for citizens to take fish from the tidal waters around the United Kingdom, to take shell-fish from the foreshore and an ancillary right to take lugworms from the foreshore, provided the taking of such worms is related to the actual or intended use of the right to fish and is for a person's individual use, not for commercial purposes (Adair v National Trust for Places of Historic Interest or Natural Beauty [1998] NI 33).

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