Acquisition
Overview of Acquisition
Easements may arise by a number of means. They may be granted by deed, by the owners of the land affected in favour of the owners of the land benefited. They may arise by implication, even if not expressly granted. The implication may either reflect the presumed intention of the parties or may arise from the requirements of the circumstances.
Easements may arise by long use. This is equivalent to the process of acquisition of title by squatting. The law on prescription has been radically changed by the 2009 land law reforms. It is necessary to apply to the court or in less contentious cases, the Land Registry in order to establish a legal easement by long use.
Easements may arise by statute. In some cases, the rights concerned, are not easements as such, but are easement like rights which may be established by statutory bodies for the maintenance of pipes, wires, drains etc.
Some easement-like rights, in particular fisheries, were established by older private acts of Parliament.
The Land Acts confirmed many customary rights held by tenants over estates. In some cases, the rights were reserved to the Land Commission while in others they were vested in the relevant local landowners in common.
Statutory Easements Like Rights
Legislation grants rights to acquire wayleaves over land to various public utility companies. The ESB has the power to place electric lines and fixtures compulsorily on property, subject to certain procedures. A provision whereby no compensation was payable in this case, was found unconstitutional, necessitating amending legislation in 1985.
The 19th-century legislation on public health granted local authorities powers in respect of water supply, sewage and surface water disposal. The Public Health Act deemed all existing sewers and water mains to be vested in the local sanitary authority. It gave extensive power to the authorities to build and maintain in place, sewers and water mains. This has been largely re-enacted in modern Water Services legislation.
The legislation created rights for members of the public to connect to water mains and sewers. These rights are subject to the requirement for planning permission. Strictly speaking, such rights are not easements but are standalone rights.
Creation by Deed
An easement is a property right and must be created by a document which is executed as a deed. Prior to the 2009 Act reforms, specific words of limitation were required in order to create and transfer an easement for a freehold estate. This same principle as applied to the grant of an interest in land generally, including the conveyance of an easement.
After the 2009 reforms, any conveyance of unregistered title land passes the fee simple or any lesser estate or interest which the grantor has the power to convey. Accordingly, no special words are now required for the grant, conveyance or assignment of an easement.
An easement, as a property right, may be leased. The general principles of law applicable to the creation of leases apply. If the lease is for a term of more than one year, it must be in writing signed by the landlord or his agent authorised in writing. It may be leased for a relatively short-term as a market rent. It may be leased for a very long term for a small or nominal rent so that it is equivalent to freehold grant.
If the requirements for the grant of an easement at law are not fulfilled, but there is a contract for the grant or for the lease of the easement, then an easement in equity may arise. A contract for the grant of a lease creates an entitlement in equity to have it enforced, and hence an equitable lease arises.
As with other agreements in respect of property, an agreement for the grant of an interest in property must be evidenced in writing. This remains the position, after the 2009 land law reforms.
Reservation of Easement
On selling land, a grantor may need to reserve rights of access to the retained land and rights for pipes, drains, wires etc. This requires that he reserve easements over the land granted/sold, in favour of the land retained.
They were complicated and somewhat artificial common law rules prior to the 2009 reforms, which necessitated technical words and special techniques, in order to ensure that an easement was reserved by deed. The deed would have to be executed by the grantee. After the 2009 reforms, the process has been simplified. A deed of sale of lands can reserve easements and other rights to the grantor, with relative ease.
The extent and scope of the easement turns on the wording of the deed which created it and depends ultimately on the interpretation of the deed. This is a matter for the courts, in the event of a dispute. Historically, the courts interpreted the deed against the interests of the grantor (seller etc).
The 2009 reforms effectively provide, that in interpreting a deed a reservation by the grantor is not deemed to be a re-grant. Accordingly, the deed will still be interpreted against the interests of the grantor. This is notwithstanding that sale deeds are usually drafted by the grantee solicitor.
Implication
An easement may arise by implication from the deed by which it is granted. There is a general principle that the grantor may not derogate from that which he grants. Where a person sells a property, he is presumed to intend to include everything necessary or appropriate to service and benefit of that property.
Where a person knows a property is intended to be used for a particular purpose, he is deemed to intend to include everything necessary for that purpose.
An easement may arise by implication, where no easement is expressed to be included. An easement, additional to those expressly mentioned in the deed, may be included by implication.
Apart from the parties’ implied intentions, an easement may arise by necessity. Where land is landlocked, the grantee will be entitled to a right of access of necessity. He must choose a particular route and adhere to it. There are differing views as to whether the principle is based on implied intention or on public policy.
Easements may arise in favour of the grantee, notwithstanding that they are not strictly necessary and that the land might be used without them. In this case, they give effect to the presumed or implied intentions of the parties.
Pre-Existing Quasi Easements
Prior to the 2009 reforms, so-called quasi-easements which existed while land was under common ownership, could crystallise into easements when the land was divided. It applied to all continuous and apparent easements reasonably necessary for the reasonable enjoyment of the property sold/transferred, which were used by the grantor for the benefit of the part granted, while he was the owner of both.
The quasi- easement must have been apparent, in that there must have been some physical evidence of the exercise of the quasi-easement. It must have been continuous.
The principle has now been replaced by a similar provision in the 2009 legislation. It provides that where the owner of land disposes of a part or all of it in parts, the transfer creates by implication for the benefit of such parts, any easement over the part retained or other parts simultaneously transferred, which is necessary for the reasonable enjoyment of the part disposed of and it was reasonable for the parties or would have been, if they had adverted to the matter to assume at the date of the transfer, that it was included.
Ancillary Rights Carried by Deed
The 2009 reforms repeat the Conveyancing Act provision that a conveyance of land is to include all buildings, erections, fixtures, hedges, ditches, fences, ways, easements, rights and advantages appertaining or reputed to appertain to land or any part of it, at the time of the transfer or enjoyed with or reputed or known as part or parcel or appurtenant to the land. This was a presumption which applied in the absence of a contrary intention in the deed.
The provision did not create new rights but transferred those which existed. It applies to easements and to other rights and benefits. There is no necessity to demonstrate that they were reasonably necessary for the enjoyment of the property.
A broadly similar rule has been re-enacted by the 2009 land law reforms. A conveyance of land includes all buildings, commons, ditches, erections, fences, fixtures, hedges, waters, watercourses and other features forming part of the land. It includes all advantages, easements, liberties, privileges, profits and rights appertaining or annexed to the land. In the case of a land with buildings, certain physical fixtures and features are included.
The legislation provides that a conveyance does not create any new rights or convert a quasi-easement into a full easement or extend or convert the scope of any right or interest, beyond that existing prior to the conveyance. It is subject in all cases to an indication to the contrary in the parties intentions.
Not Ready Implication for Grantor
As set out above, it is more difficult to imply a reservation in favour of the grantor for the benefit of his retained land. He must expressly provide for such reservation in clear terms. The deed will be interpreted against the interests of the grantor.
The principles of derogation from the grant are not applicable in relation to the seller/grantor. The court is much less ready to infer the existence of implied easements in his favour.
An easement or a necessity may be permitted where the land would be otherwise landlocked. An easement of necessity must be for the use of the property. The principle is said to apply to rights of way only.