#easements #land #law

An equitable easement will arise in the following circumstances:
(a) Where the grantor of the easement has an equitable rather than a legal estate. The minimum requirement here is that the easement must be in writing and signed by the grantor: LPA 1925, s 53(1)(a). This type of equitable easement is very rare.
(b) Where an easement has been created for an uncertain duration (and therefore does not fall under the LPA 1925, s (1)(2) definition of a legal easement) the grant again needs to comply with LPA 1925, s 53(1)(a).
(c) Where the parties have failed to fulfil the formal requirements for the creation of a legal easement (for example, by not utilising a deed or by failing to register an expressly granted/reserved easement granted out of registered land). Where this has occurred it may be possible to see the failed attempt to grant an easement as an agreement (contract) to create it. Obviously, to be able to do so the failed attempt must fulfil the requirements for a valid contract as stipulated in [ statute ]. Where a valid contract exists and is one deemed capable of specific performance, the application of the maxim ‘equity sees as done that which ought to be done’, enables equity to see this failed attempt to create a legal easement as creating an equitable one instead.
(d) Where the parties have deliberately entered into a contract to grant a legal easement in the future. The contract must comply with the formalities in LP(MP)A 1989, s 2 and be one that is capable of specific performance. It is then the application of the maxim discussed above which allows an equitable easement to arise from this contract.
(e) Where the easement is implied in the acquisition of an equitable estate. As this is an implied easement there are no additional formalities to comply with; the easement must simply be implied into a document which creates an equitable estate.

LP(MP)A 1989, s 2