EASEMENT – STAGE TWO – ELLENBOROUGH PARK – 4 PART TEST
1. THERE MUST BE A DOMINANT AND SERVIENT TENEMENT
▪ It cannot exist ‘in gross’ – independently of the land – that would be a licence or personal
right.
(Hawkins v Rutter 1892).
2. THE RIGHT MUST ACCOMMODATE THE DOMINANT TENEMENT
▪ Must have some direct beneficial impact on DT.
▪ Right only benefits dominant owner whilst they own dominant land. (P&A Swift
investments v combined English stores group 1989)
▪ The right should affect nature, quality, use or value of dominant land, not be expressly
personal.
▪ Ask: does it benefit owner of land, cease to be of use once the dominant owner has
parted with the land? Does the right make the dominant land a better or more convenient
property? Does is add value or amenity to the land?
▪ Difficult to know if accommodates land or business
Hill vTupper boats on canal – only business – no easement
Moody v steggles Sign to pub – normal use of land – was easement.
3. MUST BE DIVERSITY OF OWNERSHIP
▪ Can’t claim and easement over your own land (Roe v Siddons 1888)
▪ This is called quasi-easement – might become easement is land is ever separated and sold
▪ Ownership includes freehold and leasehold. If same person owns A and leases out B – that
is sufficient for easement.
▪ Any easements will be extinguished if land is brought back to same ownership.
4. THE RIGHT MUST LIE IN GRANT
▪ The right must be capable of forming the subject matter of a deed.
▪ Person who grants right must have power to do so; over 18, own the legal estate.
▪ Grantee must also be capable. Cannot grant easement for group 9residents of village) as
people in group might change.
▪ Must be capable of reasonably exact description.
▪ Rights too vague will not be enforced (a scenic view – Williams Aldreds Case 1610)
▪ Judicially recognised – within the general nature of rights traditionally recognised as
easement.
EXAMPLES
o Right of way – Borman v Griffith
o Drainage and other pipelines atwood v bovis homes
o Right of support – Dalton v angus
o Right to use sporting and leisure facilities – regency villas title v Diamond resorts
o Right to use land for recreational purposes – re Ellenborough park
o NOT EXHAUSTIVE or closed list Dice v Lady James Hay BUT new types of easements cannot be
negative in nature. (appropriate way for this is to impose covenant on the buyer)
1. THERE MUST BE A DOMINANT AND SERVIENT TENEMENT
▪ It cannot exist ‘in gross’ – independently of the land – that would be a licence or personal
right.
(Hawkins v Rutter 1892).
2. THE RIGHT MUST ACCOMMODATE THE DOMINANT TENEMENT
▪ Must have some direct beneficial impact on DT.
▪ Right only benefits dominant owner whilst they own dominant land. (P&A Swift
investments v combined English stores group 1989)
▪ The right should affect nature, quality, use or value of dominant land, not be expressly
personal.
▪ Ask: does it benefit owner of land, cease to be of use once the dominant owner has
parted with the land? Does the right make the dominant land a better or more convenient
property? Does is add value or amenity to the land?
▪ Difficult to know if accommodates land or business
Hill vTupper boats on canal – only business – no easement
Moody v steggles Sign to pub – normal use of land – was easement.
3. MUST BE DIVERSITY OF OWNERSHIP
▪ Can’t claim and easement over your own land (Roe v Siddons 1888)
▪ This is called quasi-easement – might become easement is land is ever separated and sold
▪ Ownership includes freehold and leasehold. If same person owns A and leases out B – that
is sufficient for easement.
▪ Any easements will be extinguished if land is brought back to same ownership.
4. THE RIGHT MUST LIE IN GRANT
▪ The right must be capable of forming the subject matter of a deed.
▪ Person who grants right must have power to do so; over 18, own the legal estate.
▪ Grantee must also be capable. Cannot grant easement for group 9residents of village) as
people in group might change.
▪ Must be capable of reasonably exact description.
▪ Rights too vague will not be enforced (a scenic view – Williams Aldreds Case 1610)
▪ Judicially recognised – within the general nature of rights traditionally recognised as
easement.
EXAMPLES
o Right of way – Borman v Griffith
o Drainage and other pipelines atwood v bovis homes
o Right of support – Dalton v angus
o Right to use sporting and leisure facilities – regency villas title v Diamond resorts
o Right to use land for recreational purposes – re Ellenborough park
o NOT EXHAUSTIVE or closed list Dice v Lady James Hay BUT new types of easements cannot be
negative in nature. (appropriate way for this is to impose covenant on the buyer)
