EASEMENTS
Easement- a proprietary right to cross or otherwise benefit from activity on one piece of land for the
benefit of another piece of land
Stops short of being a lease (not a grant of exclusive possession and must exist in relation to
two pieces of land)
Differs from licences as in rem (proprietary) rights, where both the benefit and the burden are
attached to the land (eg. the right may reduce the value of the land over which it is exercised)
Easements can include rights to access, drainage, storage, to light etc.
Arose historically from the ‘enclosure movement’ (transition from communal open fields
to enclosed ‘private’ fields) and the rapid growth of urbanisation
Essential characteristics of easements
Established in Re Ellenborough Park [1956]
(1) there must be a dominant and servient tenement (plot of land)
(2) the right must accommodate (benefit) the dominant tenement
(3) the owners of the two tenements must be different people
(4) the right claimed must be capable of being the subject matter of a grant
(1) there must be a dominant and servient tenement
The dominant tenement- benefits from the right conferred by the easement
The servient tenement- subject to the right conferred by the easement
Easements therefore cannot exist in gross (held by a person as a personal right)
London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]- easement allowing
the dominant tenement to park on the servient tenement’s land was expressed so that if
he brought more land, in relation to that land, he could still park on the servient
tenement’s land (future dominant land did not yet exist and therefore was construed as a
personal right carried by the dominant)
(2) the right must accommodate (benefit) the dominant tenement
The right must make the dominant land better (eg. in Ellenborough Park, the easement made
the houses on the dominant land with limited garden space better by granting access to the
park)
Regency Villas v Diamond Resorts [2018]- ‘easements generally serve or accommodate
the use and enjoyment of the dominant tenement by human beings. Thus, a right of way
makes the dominant tenement more accessible. Service easements enable the occupiers
of the dominant tenement to receive water, gas and electricity. A drainage easement
enables rainwater and sewage to be removed from land, in circumstances where its use
would otherwise be inhibited by flooding’
It is also insufficient that the right be annexed to the dominant tenement if the
enjoyment of that right has nothing to do with the normal use of the land
Proximity- must also not be too remote (a lack of proximity to the easement will be a good
indication of the fact that it does not actually accommodate the dominant tenement), although
the pieces of land do not have to be directly next to each other
Moody v Steggles [1879]- a claimed right to put up a pub sign (located down the
passage) on neighbouring land (on the high street) did accommodate the land
, However, in Hill v Tupper [1863], C failed in a claimed right to have the sole and
exclusive right to put canal boats on a canal (did not accommodate the land as a
personal right)
Moody differentiated from Hill as the sign supported the dominant tenement’s business
of running a pub, whereas in Hill, the right to more boats was effectively the business
itself (did not confer any meaningful benefit to the strip of land next to the canal)
Platt v Crouch [2003]- the right for guests of a hotel to moor their boats on another’s
land did accommodate the land
(3) the owners of the two tenements must be different people
‘When the owner of Whiteacre and Blackacre passes over the former to Blackacre, he is not
exercising a right of way (over Whiteacre in favour of Blackacre); he is merely making use of his
own land to get from one part of it to another’ (Roe v Siddons [1888])
Quasi-easement- refers to something that could be an easement if the tenements involved were
owned by different people
(4) the right claimed must be capable of being the subject matter of a grant
(1) this requires a capable grantor (must have the legal capacity and an estate in land as found
in s1 LPA 1925) and grantee
(2) the right must be sufficiently definite (can be neither too broad nor overly defined)
William Aldred’s Case [1610]- right to view too broad
Harris v De Pinna [1886]- right to a flow of air too broad
Hunter v Canary Wharf [1997]- right to a television signal was too indeterminate to be an
easement
However, a right to light can qualify as an easement (more determinate as it is
technically a right to light through a particular window etc.)
(3) the right must be within the general nature of rights capable of being created as easements
The right must not require any positive action or the expenditure of money by the owner
of the servient tenement (eg. if the easement pertains to a track the dominant tenement
must maintain this for the servient tenement)
Rance v Elvin [1985]- no easement to install and supply a water supply by the
servient tenement owner (for the benefit of the dominant tenement)
However, the exception in Crow v Wood [1971] imposes an easement to maintain
fencing and walls to keep livestock out (interpreted narrowly to only apply in the
context of livestock)
The right claimed must be in the general nature of rights recognised as easements
Historically, this was a closed list, however this strict interpretation was
undermined in both Re Ellenborough Park (right to use a garden) and Regency
Villas (right to recreation activities) where the rights only broadly fell in the
general class of previously recognised easements
There is nonetheless a general unwillingness from the courts to grant new
negative easements (restrict what the servient tenement can do) beyond the right
to light and the right to support
Follows that there are more suitable solutions, such as restrictive covenants
Phipps v Pears [1965]- rejected the right to have protection from weathering
Hunter- rejected the right to television reception
Easement- a proprietary right to cross or otherwise benefit from activity on one piece of land for the
benefit of another piece of land
Stops short of being a lease (not a grant of exclusive possession and must exist in relation to
two pieces of land)
Differs from licences as in rem (proprietary) rights, where both the benefit and the burden are
attached to the land (eg. the right may reduce the value of the land over which it is exercised)
Easements can include rights to access, drainage, storage, to light etc.
Arose historically from the ‘enclosure movement’ (transition from communal open fields
to enclosed ‘private’ fields) and the rapid growth of urbanisation
Essential characteristics of easements
Established in Re Ellenborough Park [1956]
(1) there must be a dominant and servient tenement (plot of land)
(2) the right must accommodate (benefit) the dominant tenement
(3) the owners of the two tenements must be different people
(4) the right claimed must be capable of being the subject matter of a grant
(1) there must be a dominant and servient tenement
The dominant tenement- benefits from the right conferred by the easement
The servient tenement- subject to the right conferred by the easement
Easements therefore cannot exist in gross (held by a person as a personal right)
London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]- easement allowing
the dominant tenement to park on the servient tenement’s land was expressed so that if
he brought more land, in relation to that land, he could still park on the servient
tenement’s land (future dominant land did not yet exist and therefore was construed as a
personal right carried by the dominant)
(2) the right must accommodate (benefit) the dominant tenement
The right must make the dominant land better (eg. in Ellenborough Park, the easement made
the houses on the dominant land with limited garden space better by granting access to the
park)
Regency Villas v Diamond Resorts [2018]- ‘easements generally serve or accommodate
the use and enjoyment of the dominant tenement by human beings. Thus, a right of way
makes the dominant tenement more accessible. Service easements enable the occupiers
of the dominant tenement to receive water, gas and electricity. A drainage easement
enables rainwater and sewage to be removed from land, in circumstances where its use
would otherwise be inhibited by flooding’
It is also insufficient that the right be annexed to the dominant tenement if the
enjoyment of that right has nothing to do with the normal use of the land
Proximity- must also not be too remote (a lack of proximity to the easement will be a good
indication of the fact that it does not actually accommodate the dominant tenement), although
the pieces of land do not have to be directly next to each other
Moody v Steggles [1879]- a claimed right to put up a pub sign (located down the
passage) on neighbouring land (on the high street) did accommodate the land
, However, in Hill v Tupper [1863], C failed in a claimed right to have the sole and
exclusive right to put canal boats on a canal (did not accommodate the land as a
personal right)
Moody differentiated from Hill as the sign supported the dominant tenement’s business
of running a pub, whereas in Hill, the right to more boats was effectively the business
itself (did not confer any meaningful benefit to the strip of land next to the canal)
Platt v Crouch [2003]- the right for guests of a hotel to moor their boats on another’s
land did accommodate the land
(3) the owners of the two tenements must be different people
‘When the owner of Whiteacre and Blackacre passes over the former to Blackacre, he is not
exercising a right of way (over Whiteacre in favour of Blackacre); he is merely making use of his
own land to get from one part of it to another’ (Roe v Siddons [1888])
Quasi-easement- refers to something that could be an easement if the tenements involved were
owned by different people
(4) the right claimed must be capable of being the subject matter of a grant
(1) this requires a capable grantor (must have the legal capacity and an estate in land as found
in s1 LPA 1925) and grantee
(2) the right must be sufficiently definite (can be neither too broad nor overly defined)
William Aldred’s Case [1610]- right to view too broad
Harris v De Pinna [1886]- right to a flow of air too broad
Hunter v Canary Wharf [1997]- right to a television signal was too indeterminate to be an
easement
However, a right to light can qualify as an easement (more determinate as it is
technically a right to light through a particular window etc.)
(3) the right must be within the general nature of rights capable of being created as easements
The right must not require any positive action or the expenditure of money by the owner
of the servient tenement (eg. if the easement pertains to a track the dominant tenement
must maintain this for the servient tenement)
Rance v Elvin [1985]- no easement to install and supply a water supply by the
servient tenement owner (for the benefit of the dominant tenement)
However, the exception in Crow v Wood [1971] imposes an easement to maintain
fencing and walls to keep livestock out (interpreted narrowly to only apply in the
context of livestock)
The right claimed must be in the general nature of rights recognised as easements
Historically, this was a closed list, however this strict interpretation was
undermined in both Re Ellenborough Park (right to use a garden) and Regency
Villas (right to recreation activities) where the rights only broadly fell in the
general class of previously recognised easements
There is nonetheless a general unwillingness from the courts to grant new
negative easements (restrict what the servient tenement can do) beyond the right
to light and the right to support
Follows that there are more suitable solutions, such as restrictive covenants
Phipps v Pears [1965]- rejected the right to have protection from weathering
Hunter- rejected the right to television reception
