Easements
Table of Contents
The criteria to be satisfied by an “easement”.....................................................................................................2
Dominant and Servient Land......................................................................................................................... 2
Dominant and Servient Land being owned by different people......................................................................3
The easement must accommodate the dominant land...................................................................................3
Economic benefit must accommodate the dominant land, not just the owner..................................................3
A right that benefits the ordinary use that the land is put to can be a valid easement.....................................4
A right granted for recreational use is not fatal to the right being recognised as an easement........................4
The right must be capable of forming the subject matter of the grant............................................................6
There must be certainty in scope of grant. An easement against the interruption of radio or TV signals is not
recognised as it would be difficult for a developer to be aware of their existence before a building is built,
and it substantially interferes with his freedom..................................................................................................7
Court exercises caution in recognising new easements. For an implied easement to exist, it must be one that
is known to the law so that it is binding on all successors in title.......................................................................7
Ancillary rights and Case Law........................................................................................................................ 9
An easement that benefits a third-party property does not fall under the doctrine of ancillary use.................9
How are easements created?...................................................................................................................... 11
1) Express Easements.................................................................................................................................. 11
Easement by grant v Easement by reservation.................................................................................................11
Requirement for necessity.................................................................................................................................11
LPA, s62(1).........................................................................................................................................................12
3) Prescriptive Easements............................................................................................................................ 14
How long do you have to show?.......................................................................................................................14
What kind of use?..............................................................................................................................................14
How are easements ended?........................................................................................................................ 14
, - The criteria to be satisfied by an “easement”.
In Re Ellenborough Park Facts:
i. In 1855, Ellenborough Park and the surrounding property, being freehold land
then open and unbuilt-on, belonged to two tenants in common who sold the
plots surrounding the park.
ii. The conveyances of the plots were in similar form granting to each purchaser
"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 costs
charges and expenses of keeping in good order and condition the said pleasure
ground."
iii. Each purchaser covenanted to pay a fair proportion of the expenses of making
the pleasure ground and at all times keeping it in good order and condition and
well stocked with plants and shrubs.
iv. The vendors covenanted with each purchaser, his heirs, executors,
administrators and assigns, at the expense of the purchaser, his heirs, executors,
administrators or assigns and all others to whom the right of enjoyment of the
pleasure ground might be granted to keep Ellenborough Park as an ornamental
pleasure ground. The park had become vested in the plaintiffs upon the statutory
trusts for sale.
Danckwerts J. held that the right to use the pleasure ground was a right known to the law
and an easement, and that accordingly the purchasers of plots and their successors in title
had legal and effective easements so to use Ellenborough Park.
The Court held that there needs to be 4 criteria’s that need to be met for something to be an
easement. They are a cumulative criterion that help us define what the substance of the
right is:
a) There must be a dominant land and a servient land.
b) Dominant and servient land must be owned by different people.
c) The easement must “accommodate” the dominant land.
d) The right must be capable of forming the subject matter of the grant.
Dominant and Servient Land
- What is the dominant land?
i. The dominant land is the land that has the easement.
- What is the servient land?
i. The land that is crossed over, or the land that is shouldering the burden.
- General Rule: English law has easements in appurtenant, i.e., it is attached to bits
of land and not the owners. An easement is a right of a landowner to enjoy (limited)
use of the land of another landowner. It is land to land enjoyment.
- Exception: Profit a prendre- it is the ability to walk over a land and take something,
so it can be attached to a person rather than the land, for example: fishing.
Table of Contents
The criteria to be satisfied by an “easement”.....................................................................................................2
Dominant and Servient Land......................................................................................................................... 2
Dominant and Servient Land being owned by different people......................................................................3
The easement must accommodate the dominant land...................................................................................3
Economic benefit must accommodate the dominant land, not just the owner..................................................3
A right that benefits the ordinary use that the land is put to can be a valid easement.....................................4
A right granted for recreational use is not fatal to the right being recognised as an easement........................4
The right must be capable of forming the subject matter of the grant............................................................6
There must be certainty in scope of grant. An easement against the interruption of radio or TV signals is not
recognised as it would be difficult for a developer to be aware of their existence before a building is built,
and it substantially interferes with his freedom..................................................................................................7
Court exercises caution in recognising new easements. For an implied easement to exist, it must be one that
is known to the law so that it is binding on all successors in title.......................................................................7
Ancillary rights and Case Law........................................................................................................................ 9
An easement that benefits a third-party property does not fall under the doctrine of ancillary use.................9
How are easements created?...................................................................................................................... 11
1) Express Easements.................................................................................................................................. 11
Easement by grant v Easement by reservation.................................................................................................11
Requirement for necessity.................................................................................................................................11
LPA, s62(1).........................................................................................................................................................12
3) Prescriptive Easements............................................................................................................................ 14
How long do you have to show?.......................................................................................................................14
What kind of use?..............................................................................................................................................14
How are easements ended?........................................................................................................................ 14
, - The criteria to be satisfied by an “easement”.
In Re Ellenborough Park Facts:
i. In 1855, Ellenborough Park and the surrounding property, being freehold land
then open and unbuilt-on, belonged to two tenants in common who sold the
plots surrounding the park.
ii. The conveyances of the plots were in similar form granting to each purchaser
"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 costs
charges and expenses of keeping in good order and condition the said pleasure
ground."
iii. Each purchaser covenanted to pay a fair proportion of the expenses of making
the pleasure ground and at all times keeping it in good order and condition and
well stocked with plants and shrubs.
iv. The vendors covenanted with each purchaser, his heirs, executors,
administrators and assigns, at the expense of the purchaser, his heirs, executors,
administrators or assigns and all others to whom the right of enjoyment of the
pleasure ground might be granted to keep Ellenborough Park as an ornamental
pleasure ground. The park had become vested in the plaintiffs upon the statutory
trusts for sale.
Danckwerts J. held that the right to use the pleasure ground was a right known to the law
and an easement, and that accordingly the purchasers of plots and their successors in title
had legal and effective easements so to use Ellenborough Park.
The Court held that there needs to be 4 criteria’s that need to be met for something to be an
easement. They are a cumulative criterion that help us define what the substance of the
right is:
a) There must be a dominant land and a servient land.
b) Dominant and servient land must be owned by different people.
c) The easement must “accommodate” the dominant land.
d) The right must be capable of forming the subject matter of the grant.
Dominant and Servient Land
- What is the dominant land?
i. The dominant land is the land that has the easement.
- What is the servient land?
i. The land that is crossed over, or the land that is shouldering the burden.
- General Rule: English law has easements in appurtenant, i.e., it is attached to bits
of land and not the owners. An easement is a right of a landowner to enjoy (limited)
use of the land of another landowner. It is land to land enjoyment.
- Exception: Profit a prendre- it is the ability to walk over a land and take something,
so it can be attached to a person rather than the land, for example: fishing.
