Property Law
Easements
How are Easements created?
Legal easements can be created in several ways under English law. The three
primary methods for creating legal easements are:
Express Grant or Reservation:
This is the most straightforward method, where the parties explicitly agree to
the creation of an easement and its terms are set out in a deed. An express
grant occurs when the owner of the servient land grants an easement to the
owner of the dominant land. Conversely, an express reservation occurs when
the owner of the dominant land sells part of their land and reserves an
easement over the sold (servient) land for the benefit of the retained
(dominant) land.
Implied Grant or Reservation: Easements can be implied by law in certain
circumstances, even when they are not expressly stated in a deed. This can
occur through:
o Necessity: When a piece of land is sold and it is absolutely necessary
to have an easement to access the public highway, for example, an
easement of way may be implied.
o Common Intention: If at the time of the sale of a property, there is a
common intention that an easement should exist, this can be implied
into the conveyance.
o Wheeldon v Burrows: Under this rule, when land is sold and part of it
retains the benefit of rights that were apparent and continuous at the
time of the sale, those rights may be implied as easements for the
benefit of the part sold.
o s.62 of the Law of Property Act 1925: This section can operate to
convert various rights and privileges that are enjoyed with a piece of
land at the time of its conveyance into legal easements.
Prescription: An easement can be acquired through long use over time. If a
person has been using land in a way that would amount to an easement for a
long enough period (usually 20 years), and this use has been without force.
1
, Key Criteria for Easements
The Re Ellenborough Park criteria are a set of conditions established in the case of
Re Ellenborough Park [1956] Ch 131, which are used to determine whether a right
can constitute an easement:
Dominant and Servient Tenement: There must be a dominant tenement
(land that benefits from the easement) and a servient tenement (land that is
burdened by the easement). An easement cannot exist in gross, meaning it
cannot exist without being attached to land.
Accommodation of the Dominant Tenement: The easement must
accommodate the dominant tenement, meaning the right must benefit the
dominant land and not merely confer a personal advantage on the owner.*
Diversity of Ownership: The dominant and servient tenements must be
owned or occupied by different persons. There must be two distinct parties
involved—one benefiting from the easement and the other burdened by it.
Capability of Forming the Subject Matter of a Grant: The right must be
capable of forming the subject matter of a grant. This means the right must be
sufficiently definite and must not be too vague or broad. It must also be a right
that can be granted and is not something that would require the servient
owner to undertake new obligations.
These criteria are used to assess whether a particular right can legally be considered
an easement, and they help maintain the balance of rights between the dominant and
servient tenements. The criteria are flexible and should not be treated as statutory
law, but they are generally applied in determining the existence of an easement.
*More detailed explanation on the requirement of “Accomodation of the
Dominant Tenement”:
The requirement that easements must accommodate the dominant tenement is one
of the four criteria established in the case of Re Ellenborough Park, which are used
to determine whether a right constitutes an easement. This particular requirement is
focused on the relationship between the easement and the dominant tenement,
which is the land that benefits from the easement.
Particularities of this requirement
Connection to the Land: The right granted must benefit the dominant
tenement in a way that is connected to the land itself, rather than providing a
mere personal advantage to the landowner. The benefit must be related to the
landowner's use and enjoyment of the dominant tenement.
Enhancement of Enjoyment: The easement must enhance the use and
enjoyment of the dominant tenement. It should make the property more useful,
valuable, or enjoyable in some tangible way.
2
Easements
How are Easements created?
Legal easements can be created in several ways under English law. The three
primary methods for creating legal easements are:
Express Grant or Reservation:
This is the most straightforward method, where the parties explicitly agree to
the creation of an easement and its terms are set out in a deed. An express
grant occurs when the owner of the servient land grants an easement to the
owner of the dominant land. Conversely, an express reservation occurs when
the owner of the dominant land sells part of their land and reserves an
easement over the sold (servient) land for the benefit of the retained
(dominant) land.
Implied Grant or Reservation: Easements can be implied by law in certain
circumstances, even when they are not expressly stated in a deed. This can
occur through:
o Necessity: When a piece of land is sold and it is absolutely necessary
to have an easement to access the public highway, for example, an
easement of way may be implied.
o Common Intention: If at the time of the sale of a property, there is a
common intention that an easement should exist, this can be implied
into the conveyance.
o Wheeldon v Burrows: Under this rule, when land is sold and part of it
retains the benefit of rights that were apparent and continuous at the
time of the sale, those rights may be implied as easements for the
benefit of the part sold.
o s.62 of the Law of Property Act 1925: This section can operate to
convert various rights and privileges that are enjoyed with a piece of
land at the time of its conveyance into legal easements.
Prescription: An easement can be acquired through long use over time. If a
person has been using land in a way that would amount to an easement for a
long enough period (usually 20 years), and this use has been without force.
1
, Key Criteria for Easements
The Re Ellenborough Park criteria are a set of conditions established in the case of
Re Ellenborough Park [1956] Ch 131, which are used to determine whether a right
can constitute an easement:
Dominant and Servient Tenement: There must be a dominant tenement
(land that benefits from the easement) and a servient tenement (land that is
burdened by the easement). An easement cannot exist in gross, meaning it
cannot exist without being attached to land.
Accommodation of the Dominant Tenement: The easement must
accommodate the dominant tenement, meaning the right must benefit the
dominant land and not merely confer a personal advantage on the owner.*
Diversity of Ownership: The dominant and servient tenements must be
owned or occupied by different persons. There must be two distinct parties
involved—one benefiting from the easement and the other burdened by it.
Capability of Forming the Subject Matter of a Grant: The right must be
capable of forming the subject matter of a grant. This means the right must be
sufficiently definite and must not be too vague or broad. It must also be a right
that can be granted and is not something that would require the servient
owner to undertake new obligations.
These criteria are used to assess whether a particular right can legally be considered
an easement, and they help maintain the balance of rights between the dominant and
servient tenements. The criteria are flexible and should not be treated as statutory
law, but they are generally applied in determining the existence of an easement.
*More detailed explanation on the requirement of “Accomodation of the
Dominant Tenement”:
The requirement that easements must accommodate the dominant tenement is one
of the four criteria established in the case of Re Ellenborough Park, which are used
to determine whether a right constitutes an easement. This particular requirement is
focused on the relationship between the easement and the dominant tenement,
which is the land that benefits from the easement.
Particularities of this requirement
Connection to the Land: The right granted must benefit the dominant
tenement in a way that is connected to the land itself, rather than providing a
mere personal advantage to the landowner. The benefit must be related to the
landowner's use and enjoyment of the dominant tenement.
Enhancement of Enjoyment: The easement must enhance the use and
enjoyment of the dominant tenement. It should make the property more useful,
valuable, or enjoyable in some tangible way.
2
