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The transfer of an existing easement on sale of the

dominant or servient tenement


This is our last webcast on easements and the final point we need to look at is whether and
how an existing easement can be passed on to a new landowner when the dominant or the
servient land is sold

We will begin by considering what happens on a sale of the dominant land i.e the land that
has the benefit of the easement. Will the new owner of the dominant tenement enjoy the
benefit of that pre-existing easement?

The rules we are about to explain apply to easements however created whether by grant
or by reservation and whether expressly or impliedly.

In the example here we see that Ella reserved a right to park on Philips land. Assuming that
reservation is valid as an easement, the issue is whether the new owner of Ellas land, Helen,
will also be able to park on Philips land.

And the answer is simple. The benefit of an existing easement will transfer. It can be
transferred expressly when the dominant land is sold. So Ella could give the benefit to Helen
in the transfer deed of the land.

Alternatively, if there was no express transfer, then we find that s.62 LPA 25 will impliedly
transfer the benefit of an existing easement on sale. So s.62 LPA in fact has 2 separate
functions: firstly it can operate to impliedly grant an easement And secondly, which is what
concerns us here, it will operate to pass on the benefit of a pre-existing easement.

Let us now move on to consider what happens when the servient land is sold i.e. the land
that is burdened by the easement. Will the new owner of the servient tenement be bound
by the pre-existing easement burdening their land?

Let us use the same scenario as before. Ella has reserved a right to park on Philips land.
Assuming that reservation is valid as an easement, the issue is here is whether the new
owner of Philips land, Joe, will also be bound to let the owner of the dominant tenement
Ella, park on his land.

The following rules apply to registered land only since this module is not addressing
unregistered land and we are in fact revising matters that we went through in the webcasts
on the topic of registered land.

The first point to remember is that in registered land all rights, including easements, will
always automatically bind a transferee of land unless that transferee is a purchaser for
valuable consideration who has registered their ownership. But when we are dealing with
such a transferee then such a person has protected status under s.29 LRA 2002. And s.29
LRA says that they will then not be bound by any interest unless it has either been recorded
on the charges register by way of a notice or if it is an overriding interest.

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So, can an easement be protected by entry of a notice on the charges register or can it be
overriding? Well, to answer this we need to distinguish between express and implied
easements.

In the case of express easements, the easement will always need to be recorded on the
charges register of the servient title for the new owner, Helen in our example, to be bound

This is true whether the easement is legal or equitable. In fact, if you look back to the
webcast titled Dealings with registered land: s.27 LRA 2002, you will recall that until it is put
on the register, s.27 LRA 2002 actually withholds legal status from an easement that you
would otherwise think was legal.

So where an easement is express the dominant owner, Philip in our example would need to
be make sure that it was recorded on the charges register of Ellas title before hELEN
became the new registered title owner. This would be so whether his easement was
potentially legal or if it was an easement that could only ever be equitable. Express
easements are not overriding.

What about implied easements? Well, where an easement is implied it too can go on the
charges register to bind the purchaser. But if this didnt happen, then the dominant owner
has a second bite of the cherry as implied easements can be overriding. If we look again at
the provisions of Schedule 3 Paragraph 3 you may recollect that an implied legal easement
will override providing it satisfies just one of three conditions. The first condition is that the
buyer, Helen in our example, had actual knowledge of it. Alternatively, even if she didnt
have knowledge of it, it would bind Helen if it would have been obvious on a reasonably
careful inspection of the land. Or the final condition that would make it binding was if Philip
had been using the easement within the period of one year leading up to Helen buying the
servient land.

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