📍
Easements
The Essential Characteristics of an Easement
📍 Easements have to possess certain characteristics. If the rights claimed don’t
have these essential characteristics they can’t be easements. They’ll probably
be licences, that is not interests in land but only permissions which can be
withdrawn at any time.
Definition
A right attached to one piece of land that burdens another piece of land
Must comply with Law of Property Act 1925 s1(2) to be 'legal':
Granted for freehold (forever) or
Granted for leasehold (fixed duration)
Types of Easements
Can be positive (right to use land) or negative (restricting use of land)
Positive: Right to do something (e.g., right of way).
Parking can be an easement only if servient owner can still use land
Negative: Right to restrict (e.g., neighbour's actions restricted due to a right to light)
Easements vs Licenses
Easement: Proprietary right that passes to successive owners — Permanent right that
passes with land ownership
License: Mere permission that can be revoked anytime — Temporary permission that can
be withdrawn
Four Essential Characteristics — Re Ellenborough Park (1956) Ch 131
Easements 1
, 1. Must have a dominant and a servient tenement (two separate pieces of land)
An easement can only exist if it is attached to (or appurtenant to) the dominant land.
—There must be an identifiable dominant and servient tenement in existence at the
time of the grant.
Dominant tenement — The land with the benefit
Servient tenement — The land that bears the burden
An easement must be attached to land - you cannot have an "easement in gross" that
exists independently of land ownership.
Rangeley v Midland Railway Co (1868) 3 Ch App 306 — Lord Cairns stated that:
“there can be no easement properly so called unless there be
both a servient and a dominant tenement”. …[and] “there can
be no such thing according to our law … as an easement in
gross”.
Any attempt to create an easement without an identifiable dominant tenement will
create a licence only.
2. The right must "accommodate" (benefit) the dominant tenement.
Re Ellenborough Park — It is not enough to show that the right enhanced the value
of the dominant tenement. The person claiming the right must to show that it was
connected with the normal enjoyment of the property.
Whether there is a connection between a right and the normal enjoyment of
property is a question of fact.
Must be sufficiently connected with that land — Plots of land must be close enough
to each other so that one plot can actually benefit from the right over the other plot.
For example, they might be ‘adjoining’.
Bailey v Stephens (1862) 12 CB (NS) 91 — “A right of way over land in
Northumberland cannot accommodate land in Kent.”
3. Dominant and servient tenements cannot be owned/occupied by same person
Key points from Re Ellenborough Park:
Dominant and servient tenements must not be owned AND occupied by same
person
Easements 2
Easements
The Essential Characteristics of an Easement
📍 Easements have to possess certain characteristics. If the rights claimed don’t
have these essential characteristics they can’t be easements. They’ll probably
be licences, that is not interests in land but only permissions which can be
withdrawn at any time.
Definition
A right attached to one piece of land that burdens another piece of land
Must comply with Law of Property Act 1925 s1(2) to be 'legal':
Granted for freehold (forever) or
Granted for leasehold (fixed duration)
Types of Easements
Can be positive (right to use land) or negative (restricting use of land)
Positive: Right to do something (e.g., right of way).
Parking can be an easement only if servient owner can still use land
Negative: Right to restrict (e.g., neighbour's actions restricted due to a right to light)
Easements vs Licenses
Easement: Proprietary right that passes to successive owners — Permanent right that
passes with land ownership
License: Mere permission that can be revoked anytime — Temporary permission that can
be withdrawn
Four Essential Characteristics — Re Ellenborough Park (1956) Ch 131
Easements 1
, 1. Must have a dominant and a servient tenement (two separate pieces of land)
An easement can only exist if it is attached to (or appurtenant to) the dominant land.
—There must be an identifiable dominant and servient tenement in existence at the
time of the grant.
Dominant tenement — The land with the benefit
Servient tenement — The land that bears the burden
An easement must be attached to land - you cannot have an "easement in gross" that
exists independently of land ownership.
Rangeley v Midland Railway Co (1868) 3 Ch App 306 — Lord Cairns stated that:
“there can be no easement properly so called unless there be
both a servient and a dominant tenement”. …[and] “there can
be no such thing according to our law … as an easement in
gross”.
Any attempt to create an easement without an identifiable dominant tenement will
create a licence only.
2. The right must "accommodate" (benefit) the dominant tenement.
Re Ellenborough Park — It is not enough to show that the right enhanced the value
of the dominant tenement. The person claiming the right must to show that it was
connected with the normal enjoyment of the property.
Whether there is a connection between a right and the normal enjoyment of
property is a question of fact.
Must be sufficiently connected with that land — Plots of land must be close enough
to each other so that one plot can actually benefit from the right over the other plot.
For example, they might be ‘adjoining’.
Bailey v Stephens (1862) 12 CB (NS) 91 — “A right of way over land in
Northumberland cannot accommodate land in Kent.”
3. Dominant and servient tenements cannot be owned/occupied by same person
Key points from Re Ellenborough Park:
Dominant and servient tenements must not be owned AND occupied by same
person
Easements 2
