EASEMENTS
Nature of easements
Limited rights one landowner enjoys over land of near neighbour e.g. right of way, right of light,
right to park on land and cross with shopping trolleys, right to enjoy lighting and exit signs
Involves two separate pieces of land confers benefit on ‘dominant tenement’ (benefitted land)
‘servient tenement’ (burdened land) owner suffers exercise of easement
Easement on land itself proprietary right passes on transfer subsequent owners suffer
Characteristics of easements
Proprietary benefit and burden pass whoever owns estate in land need careful as if too many
rights servient tenement can find use + enjoyment of land disrupted overburdened
ELLENBOROUGH PARK* – 4 characteristics of easements
(1) Must be a dominant and servient tenement;
(2) Dominant and servient owners must be different people
(3) Easement must accommodate dominant tenement
(4) the right must be capable of being the subject matter of a grant
Represent conclusion of case law, but not treated as statute not enough ensure easement
(1) DOMINANT AND SERVIENT TENEMENT
Servient tenement carries burden of right
Dominant tenement carries benefit of right
(2) EASEMENT MUST BE OWNED/OCCUPIED BY DIFFERENT PEOPLE
2 parcels of land (dominant + servient have to be owned by separate people nature of
easement is right over someone else’s land cannot have easement over own land
Cannot be owned/occupied by same person if ownership/ occupation of both lands become
same person, easement destroyed (no easement against themselves)
Can have e.g. tenant enjoying easement over land of landlords as not owned/occupied same
(3) EASEMENT MUST ACCOMMODATE DOMINANT TENEMENT – Benefit use
To benefit dominant tenement and not merely a personal convenience + must be sufficiently
proximate (near) more physically separate two properties are, less likely to regard as easement
Must not confer purely personal advantage for dominant tenement + increases value of land
Needs to be clear and defined circumstances does not need to be needed e.g. enhance utlity
Hill v Tupper [1863]*: Hill has agreement with canal company to offer pleasure trips across the
canal, Mr Tupper also offer canal trips, Hill not happy and states has easement so Tupper cannot
offer too held was personal so cannot be easement
Moody v Steggles [1879]*: Moody owns pub, put sign on building showing pub is this way held
held easement to hang a sign as accommodated land
Todrick v Western National [1934]: distance before easement becomes unworkable easement
must be connected with enjoyment of dominant + and must be for its benefit
1
,(4) EASEMENT MUST ‘BE CAPABLE OF FORMING SUBJECT MATTER OF A GRANT’
Every easement must be capable of being expressly conveyed by deed (even if created some
other way) deed/grant details clarity and certainty
1) Needs a capable grantor to acquire property right (no licence though) who is in possession of
dominant tenement + capable grantee, freeholder/leaseholder to create an easement (possession in
intended servient tenement)
2) All rights capable of forming subject matter of grant must be sufficiently certain clear + precise
definition so servient owner (+ purchasers) knows extent of obligation – e.g. no easement of privacy,
no easement to receive light (but can through defined window)
Re Aldred [1610]: right to ‘good view’ not easement as too indefinite to exist as property right
3) Ought to be within the general categories of established easements new easements emerge
over time but typically follow a pattern
Positive easement is where dominant has positive right to use land of the servient tenement; i.e.
to walk over their land, using the kitchen etc
Negative easement restricts servient to do or not to do something on own land (i.e. not build,
spend money, etc) do not really grant, more appropriate under ‘restrictive covenants’
Phipps and Bears [1965]: row of houses, one of them demolished, led to end of terrace to be
damaged by frost and claimant sued arguing there should be some protection to stop it being
frostbitten, Denning held it would be a negative easement, as spend money or make arrangements
to protect other house, so held cannot be an easement
Hunter v Canary Wharf [1997]*: complained building of canary wharf interfered with tv signal, held
it was not a breach of easement, as if it was upheld it would have moreorless stopped many
developments and would have placed a too big restriction on the land, and thus cannot constitute
an easement
Coventry v Lawrence [2014]*: motorcycle racing that created a loud noise, right to omit loud noise
was deemed to be an easement, right to omit noise over a neighbouring area was an easement
4) Easement must not involve any expenditure by servient owner
5)Easement must not be so extensive to give dominant sole or joint possession of land – if no room
left for servient owner cannot be an easement
Square Properties v Nissan [2014]*: Easement park over 80cars allowed as not completely deprive
servient owners reasonable use of land retained possession + control
Copeland v Greenhalf [1952]: long land owners used to access orchads, lorry repairers used land to
park vehicles, always left a gap to allow servient tenement to get to orchad, agreement but at the
timeheld could not be an easement, more or less joint possession
Wright v Macadam [1949]*: claimant leased flat, D gave permission to claimant to store coal in
garden shed held it could be an easement as if there is coal in the garden shed, is there enough
space for the servient tenement
2
, Grigsby v Melville [1972]*: claim to keep goods in a cellar held not easement as did not leave
enough land to servient, as like joint possessionneed to look at facts each case
Access to Neighbouring Land Act (1992): easement to grant dominant right to go on servient for
maintenance + repairs useful where building close to boundary of servient not very common
not create statutory form of easement, allows get court access order allows to trespass
CREATION OF EASEMENTS
LEGAL EASEMENTS
(1) Created (expressly or impliedly) by DEED (s.52(1) LPA), STATUTE, or PRESCRIPTION
(2) Duration is of a freehold or leasehold – fee simple or terms of years absolute (s.1 LPA 1925)
Need to register legal easement so it is protected passes onto subsequent purchaser
Easements created by DEED (unregistered land) or REGISTERED DISPOSITION (registered land)
Most legal easements created by deed (unregistered) or registered disposition on title as by
formal documents ensure existence for purchasers of servient land
Whether expressly or impliedly created by deed or registered disposition not affect quality
Easements created by STATUTE
Act of Parliament can determine if local authority, corporation or even private individual shall be
entitled to benefit of an easement usually for public purpose deliberately created by Act
Easements created by PRESCRIPTION
Acquisition of a right by long use e.g. enjoyed right for many years 3 forms: common law
prescription, ‘lost modern grant’ and under Prescription Act 1832
EQUITABLE EASEMENTS
If new dominant owner fails to register their new easement, then only equitable despite being
created by deed
If servient is unregistered legal binds everyone but equitable needs to be registered as a land
charge (Class D(iii) under LCA 1972) to bind purchasers
If servient is registered, needs to protect by entry as AGREED OR UNILATERAL NOTICE on title
Equitable can be created by:
o Contract (s.2 LP(MP)A 1989 contract creating interest in writing, all terms, signed)
o Proprietary estoppel: oral promise relied to detriment creates equitable easement as
unconscionable to deny
Distinction between legal + equitable easements still important despite LRA until e-conveyancing
EXPRESS CREATION – express grant or reservation
EXPRESS GRANT: owner of servient grants easement to owner of dominant tenement
Servient +dominant in separate ownership grant easement to neighbour e.g. right to way over
land for one-off paymentif grant by deed or registered disposition= legal, if contract=equitable
Land owned by servient, then sells or leases piece of land, may include a grant of easement in
sale/lease to purchaser land remaining in seller’s possession becomes servient tenement and
piece sold/leased becomes dominant expressly mention in conveyance dominant part to
purchaser if by deed or registered disposition= legal, if contract= equitable
E.g. owner has 2 lands, sells 1, as easement to go across own land
3
Nature of easements
Limited rights one landowner enjoys over land of near neighbour e.g. right of way, right of light,
right to park on land and cross with shopping trolleys, right to enjoy lighting and exit signs
Involves two separate pieces of land confers benefit on ‘dominant tenement’ (benefitted land)
‘servient tenement’ (burdened land) owner suffers exercise of easement
Easement on land itself proprietary right passes on transfer subsequent owners suffer
Characteristics of easements
Proprietary benefit and burden pass whoever owns estate in land need careful as if too many
rights servient tenement can find use + enjoyment of land disrupted overburdened
ELLENBOROUGH PARK* – 4 characteristics of easements
(1) Must be a dominant and servient tenement;
(2) Dominant and servient owners must be different people
(3) Easement must accommodate dominant tenement
(4) the right must be capable of being the subject matter of a grant
Represent conclusion of case law, but not treated as statute not enough ensure easement
(1) DOMINANT AND SERVIENT TENEMENT
Servient tenement carries burden of right
Dominant tenement carries benefit of right
(2) EASEMENT MUST BE OWNED/OCCUPIED BY DIFFERENT PEOPLE
2 parcels of land (dominant + servient have to be owned by separate people nature of
easement is right over someone else’s land cannot have easement over own land
Cannot be owned/occupied by same person if ownership/ occupation of both lands become
same person, easement destroyed (no easement against themselves)
Can have e.g. tenant enjoying easement over land of landlords as not owned/occupied same
(3) EASEMENT MUST ACCOMMODATE DOMINANT TENEMENT – Benefit use
To benefit dominant tenement and not merely a personal convenience + must be sufficiently
proximate (near) more physically separate two properties are, less likely to regard as easement
Must not confer purely personal advantage for dominant tenement + increases value of land
Needs to be clear and defined circumstances does not need to be needed e.g. enhance utlity
Hill v Tupper [1863]*: Hill has agreement with canal company to offer pleasure trips across the
canal, Mr Tupper also offer canal trips, Hill not happy and states has easement so Tupper cannot
offer too held was personal so cannot be easement
Moody v Steggles [1879]*: Moody owns pub, put sign on building showing pub is this way held
held easement to hang a sign as accommodated land
Todrick v Western National [1934]: distance before easement becomes unworkable easement
must be connected with enjoyment of dominant + and must be for its benefit
1
,(4) EASEMENT MUST ‘BE CAPABLE OF FORMING SUBJECT MATTER OF A GRANT’
Every easement must be capable of being expressly conveyed by deed (even if created some
other way) deed/grant details clarity and certainty
1) Needs a capable grantor to acquire property right (no licence though) who is in possession of
dominant tenement + capable grantee, freeholder/leaseholder to create an easement (possession in
intended servient tenement)
2) All rights capable of forming subject matter of grant must be sufficiently certain clear + precise
definition so servient owner (+ purchasers) knows extent of obligation – e.g. no easement of privacy,
no easement to receive light (but can through defined window)
Re Aldred [1610]: right to ‘good view’ not easement as too indefinite to exist as property right
3) Ought to be within the general categories of established easements new easements emerge
over time but typically follow a pattern
Positive easement is where dominant has positive right to use land of the servient tenement; i.e.
to walk over their land, using the kitchen etc
Negative easement restricts servient to do or not to do something on own land (i.e. not build,
spend money, etc) do not really grant, more appropriate under ‘restrictive covenants’
Phipps and Bears [1965]: row of houses, one of them demolished, led to end of terrace to be
damaged by frost and claimant sued arguing there should be some protection to stop it being
frostbitten, Denning held it would be a negative easement, as spend money or make arrangements
to protect other house, so held cannot be an easement
Hunter v Canary Wharf [1997]*: complained building of canary wharf interfered with tv signal, held
it was not a breach of easement, as if it was upheld it would have moreorless stopped many
developments and would have placed a too big restriction on the land, and thus cannot constitute
an easement
Coventry v Lawrence [2014]*: motorcycle racing that created a loud noise, right to omit loud noise
was deemed to be an easement, right to omit noise over a neighbouring area was an easement
4) Easement must not involve any expenditure by servient owner
5)Easement must not be so extensive to give dominant sole or joint possession of land – if no room
left for servient owner cannot be an easement
Square Properties v Nissan [2014]*: Easement park over 80cars allowed as not completely deprive
servient owners reasonable use of land retained possession + control
Copeland v Greenhalf [1952]: long land owners used to access orchads, lorry repairers used land to
park vehicles, always left a gap to allow servient tenement to get to orchad, agreement but at the
timeheld could not be an easement, more or less joint possession
Wright v Macadam [1949]*: claimant leased flat, D gave permission to claimant to store coal in
garden shed held it could be an easement as if there is coal in the garden shed, is there enough
space for the servient tenement
2
, Grigsby v Melville [1972]*: claim to keep goods in a cellar held not easement as did not leave
enough land to servient, as like joint possessionneed to look at facts each case
Access to Neighbouring Land Act (1992): easement to grant dominant right to go on servient for
maintenance + repairs useful where building close to boundary of servient not very common
not create statutory form of easement, allows get court access order allows to trespass
CREATION OF EASEMENTS
LEGAL EASEMENTS
(1) Created (expressly or impliedly) by DEED (s.52(1) LPA), STATUTE, or PRESCRIPTION
(2) Duration is of a freehold or leasehold – fee simple or terms of years absolute (s.1 LPA 1925)
Need to register legal easement so it is protected passes onto subsequent purchaser
Easements created by DEED (unregistered land) or REGISTERED DISPOSITION (registered land)
Most legal easements created by deed (unregistered) or registered disposition on title as by
formal documents ensure existence for purchasers of servient land
Whether expressly or impliedly created by deed or registered disposition not affect quality
Easements created by STATUTE
Act of Parliament can determine if local authority, corporation or even private individual shall be
entitled to benefit of an easement usually for public purpose deliberately created by Act
Easements created by PRESCRIPTION
Acquisition of a right by long use e.g. enjoyed right for many years 3 forms: common law
prescription, ‘lost modern grant’ and under Prescription Act 1832
EQUITABLE EASEMENTS
If new dominant owner fails to register their new easement, then only equitable despite being
created by deed
If servient is unregistered legal binds everyone but equitable needs to be registered as a land
charge (Class D(iii) under LCA 1972) to bind purchasers
If servient is registered, needs to protect by entry as AGREED OR UNILATERAL NOTICE on title
Equitable can be created by:
o Contract (s.2 LP(MP)A 1989 contract creating interest in writing, all terms, signed)
o Proprietary estoppel: oral promise relied to detriment creates equitable easement as
unconscionable to deny
Distinction between legal + equitable easements still important despite LRA until e-conveyancing
EXPRESS CREATION – express grant or reservation
EXPRESS GRANT: owner of servient grants easement to owner of dominant tenement
Servient +dominant in separate ownership grant easement to neighbour e.g. right to way over
land for one-off paymentif grant by deed or registered disposition= legal, if contract=equitable
Land owned by servient, then sells or leases piece of land, may include a grant of easement in
sale/lease to purchaser land remaining in seller’s possession becomes servient tenement and
piece sold/leased becomes dominant expressly mention in conveyance dominant part to
purchaser if by deed or registered disposition= legal, if contract= equitable
E.g. owner has 2 lands, sells 1, as easement to go across own land
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