208: Easements and unity of seisin – practical application of the rule

Easements, their creation and their extinction can be anything but straightforward, and understanding the right way to apply the rules can be crucial in protecting your client’s interest.

In particular, the commonly misunderstood ‘Unity of Seisin’ rule can act both to save rights that may appear to have been lost, as well as its well-known role of extinguishing redundant easements.

The rule…

The feudal system concept of ‘seisin’ applied when landowners were said to be ‘seised’ of land when they were ‘set’ on the land and continued to ‘sit’ there.

Unity of seisin applies to the following two rules for easements. For a right of way to be valid there must (1) be dominant and servient land or tenement, and (2) such tenements must be owned by different persons.

Case law has applied the rule confirming that an easement will be extinguished if the ownership and possession of the estate of both the dominant and servient land vests in the same party.

Practical examples

In a recent case, we considered the position of a legal owner of both a freehold site and an adjoining long leasehold car park.

The freehold land benefitted from a right of access to and from the main road over the leasehold car park. Whilst these two titles were in common possession, the right of access was not required, however the situation that required consideration was the following:

• if the owner was for some reason to sell the freehold parcel separately, for some development or other use, would the right of way over the leasehold parcel have been extinguished by virtue of unity of seisin?
• and, therefore, failing an express grant of a new easement (were that possible) would those crucial appurtenant rights of access be lost?

Same ‘owner’, different legal estate…?

Case law calls for both ownership and possession; ‘possession’ in this context means occupation of the land, whereas ‘ownership’ specifically refers to ownership in fee simple absolute, the freeholder of the land.

Consider where both parcels vest in one owner, one part as freehold and the other as long leasehold. In such a situation where the land vests in the same ‘owner’ but different legal estates there will be no unity of seisin as there is no unity of ownership.

Similarly, where an easement has been created and subsequently a lease is granted of the dominant land to the owner of the servient land, during the term of this lease there will be unity of possession of the two parcels and the right of way can be considered as suspended or dormant.

However, at the end of the term of lease, or if the lease is assigned to a third party, the easement will revive.

The takeaway here is that the rule which first looks like it might have extinguished an important right and caused potential future concerns in fact acted to protect its effect.

Indeed, we must remember to consider the status of all easements during every transaction, as they may often be a little more difficult to extinguish than initially thought.