Lecture - Easements:
Situation where we have two properties, rights of one property over another. Moving from
one property to two property situations. Looking at rights over someone else’s land. 65% of
properties in England and Wales are subject to easements.
Definition:
“An easement is an incorporeal hereditament, comprising in essence either a positive
or a negative right of user over the land of another. In effect, an easement is a right
annexed to one piece of land (a ‘dominant tenement’) to utilise land of different
ownership (a ‘servient tenement’) in a particular way or, indeed, to prevent the owner
of that land from utilising his own land in a particular way.” (K. Gray, Elements of
Land Law)
It’s a right attached to a piece of land allowing it to use a neighbouring piece of land in a
specific way. Key essence is that it is a right for the owner of one piece of land, over the land
belonging to someone else. Can be positive in effect in that it allows you to do something
(e.g. right of way); or a right over their land to prevent them from doing something, so
negative (e.g. a right of light). It must be exercised for one person’s land, for the benefit of
another person’s land. Most common easement = right of way.
I. Terminology:
Dominant tenement: the land with the BENEFIT of the easement.
Servient tenement: the land over which the right it exercised.
Positive easement (e.g. right of way): a right to enter onto someone else’s land to
exercise the right. Vast majority are rights of way.
Negative easement (e.g. a right to light): a right to prevent someone from doing
something on their land.
Easements are capable of being legal interests in land – LPA 1925 s.1(2)(a), but can be either
legal or equitable. Not all rights exercisable over someone else’s land amount to easements.
This matters because easements are property rights, your protection will be greater in an
easement, but not every right is capable of amounting to an easement. There are also
numerous ways in which easements can be created.
II. Easements distinguished from other related interests:
Profits à prendre: very similar to easements, but a profit allows you to go onto the
land and actually, instead of just going on the land, take something from it (e.g.
piscary – taking fish).
Licenses: personal right to come onto land.
, Miscellaneous: key point is that whilst easements relate to private law, there are areas
where the state is involved (e.g. planning law, local rights of way).
Covenants: a promise made in a deed, creates an interest in relation to land. I can
enter into a covenant that I will not build in my back garden.
III. Law commission report ‘Making land work’.
They identified how valuable these interests are. They went on to say that the time is ripe for
a comprehensive review and reform of this group of rights:
The law relating to these three types of right is ancient. It has been reviewed and
reformed periodically over the centuries, but little has been done in recent years
because the efforts of Parliament have been focused on the legal structures for land
ownership and registration of title to land. The time is ripe for a comprehensive
review and reform of this group of rights.
A. Which rights may be easements?
In this problem question (on slide): Danni clearly has a positive right to an easement. One
hand Windmill is the land over which the right is exercised. As to Jamie he’s claiming a right
to wind flow and energy – this is a negative right. Rights of airflow are more complicated in
comparison to rights of light.
Note: there is no definition in English law of an easement, we have to draw from the common
law. Why can’t any right amount to an easement: because they are property rights, they are
capable of being legal interests, so they bind and can do so indefinitely. Risk that you
overburden the land. You have to balance this obviously with freedom of choice however.
As to easements, the list is not closed (Dyce v Lady James Hay), just because it is not
recognised as an easement now, doesn’t mean it won’t be.
See case of Re Ellenborough Park: it gives us a test. It defines the essential characteristics
which a right must have if it is going to amount to an easement. It creates a four-part test.
Facts: the plots around the three sides of EP were plots and all sold off. When they
were sold, they were sold with a right. House purchasers were granted 'the full
enjoyment...at all times hereafter, in common with the other persons to whom such
easements may be granted of the pleasure ground...Ellenborough Park...but subject to
the payment of a fair and just proportion of the ... expenses of keeping [it] in good
order and condition....‘
Did this amount to an easement (government said no)? Or is it a jus spatiandi, a right to
wander, not recognised under English law.
Situation where we have two properties, rights of one property over another. Moving from
one property to two property situations. Looking at rights over someone else’s land. 65% of
properties in England and Wales are subject to easements.
Definition:
“An easement is an incorporeal hereditament, comprising in essence either a positive
or a negative right of user over the land of another. In effect, an easement is a right
annexed to one piece of land (a ‘dominant tenement’) to utilise land of different
ownership (a ‘servient tenement’) in a particular way or, indeed, to prevent the owner
of that land from utilising his own land in a particular way.” (K. Gray, Elements of
Land Law)
It’s a right attached to a piece of land allowing it to use a neighbouring piece of land in a
specific way. Key essence is that it is a right for the owner of one piece of land, over the land
belonging to someone else. Can be positive in effect in that it allows you to do something
(e.g. right of way); or a right over their land to prevent them from doing something, so
negative (e.g. a right of light). It must be exercised for one person’s land, for the benefit of
another person’s land. Most common easement = right of way.
I. Terminology:
Dominant tenement: the land with the BENEFIT of the easement.
Servient tenement: the land over which the right it exercised.
Positive easement (e.g. right of way): a right to enter onto someone else’s land to
exercise the right. Vast majority are rights of way.
Negative easement (e.g. a right to light): a right to prevent someone from doing
something on their land.
Easements are capable of being legal interests in land – LPA 1925 s.1(2)(a), but can be either
legal or equitable. Not all rights exercisable over someone else’s land amount to easements.
This matters because easements are property rights, your protection will be greater in an
easement, but not every right is capable of amounting to an easement. There are also
numerous ways in which easements can be created.
II. Easements distinguished from other related interests:
Profits à prendre: very similar to easements, but a profit allows you to go onto the
land and actually, instead of just going on the land, take something from it (e.g.
piscary – taking fish).
Licenses: personal right to come onto land.
, Miscellaneous: key point is that whilst easements relate to private law, there are areas
where the state is involved (e.g. planning law, local rights of way).
Covenants: a promise made in a deed, creates an interest in relation to land. I can
enter into a covenant that I will not build in my back garden.
III. Law commission report ‘Making land work’.
They identified how valuable these interests are. They went on to say that the time is ripe for
a comprehensive review and reform of this group of rights:
The law relating to these three types of right is ancient. It has been reviewed and
reformed periodically over the centuries, but little has been done in recent years
because the efforts of Parliament have been focused on the legal structures for land
ownership and registration of title to land. The time is ripe for a comprehensive
review and reform of this group of rights.
A. Which rights may be easements?
In this problem question (on slide): Danni clearly has a positive right to an easement. One
hand Windmill is the land over which the right is exercised. As to Jamie he’s claiming a right
to wind flow and energy – this is a negative right. Rights of airflow are more complicated in
comparison to rights of light.
Note: there is no definition in English law of an easement, we have to draw from the common
law. Why can’t any right amount to an easement: because they are property rights, they are
capable of being legal interests, so they bind and can do so indefinitely. Risk that you
overburden the land. You have to balance this obviously with freedom of choice however.
As to easements, the list is not closed (Dyce v Lady James Hay), just because it is not
recognised as an easement now, doesn’t mean it won’t be.
See case of Re Ellenborough Park: it gives us a test. It defines the essential characteristics
which a right must have if it is going to amount to an easement. It creates a four-part test.
Facts: the plots around the three sides of EP were plots and all sold off. When they
were sold, they were sold with a right. House purchasers were granted 'the full
enjoyment...at all times hereafter, in common with the other persons to whom such
easements may be granted of the pleasure ground...Ellenborough Park...but subject to
the payment of a fair and just proportion of the ... expenses of keeping [it] in good
order and condition....‘
Did this amount to an easement (government said no)? Or is it a jus spatiandi, a right to
wander, not recognised under English law.
