Easements
In 2015, Tom decided to build two houses on a vacant plot of land which he was the
registered proprietor. He completed the first house, Oaktree, and decided to live there. When
Tom finished building the second house, Yewtree, he leased it by deed to Edward for two
years. A little while after moving into Yewtree, Edward laid pipes beneath the soil of Oaktree’s
garden. This was the least expensive and most direct route by which the gas supply could be
carried from the main road to Yewtree. Tom did not mind because Edward agreed that Tom
could keep his van in the garage belonging to Yewtree. Edward also used the track across
Oaktree garden as a shortcut to the nearby river to go fishing. Tom did not mind this and
sometimes joined Edward fishing.
In February 2017, Tom granted Edward a new lease of Yewtree for six years; soon afterwards
they had a furious row where Tom asked Edward to stop using his garden as a shortcut to the
river and also demanded that he remove the gas pipes running through Oaktree, Edward
responded by ordering Tom to remove his van from the garage of Yewtree.
Advise the parties as to their respectives rights and obligations.
Rights Tom is claiming
- Right to park van in garage (implied reservation)
Rights Edward is claiming
- Right to use track as shortcut (implied grant)
- Right to lay pipes (implied grant)
As per the question, this paper shall advise Tom and Edward as to their respective rights and
obligations. The rights in question are the right to park the van in Yewtree’s garage, the right to
lay pipes beneath the soil of Oaktree, and the right to use the track across Oaktree’s garden.
, This paper will consider whether the above rights are personal rights given by the landowner
which could be revoked at any time, or easements which are capable of binding the landowner.
Essentials of an Easement
As per Lord Evershed MR in Ellenborough Park [1956], several elements need to be satisfied in
order to establish the rights as easements. First of all, there must be a dominant tenement (DT)
i.e. the benefitting land, and a servient tenement (ST) i.e. the burdened land. It was held to be
impossible for easements to exist independently of a land, as seen in Blenheim Estates Ltd v
Ladbroke Retail Parks Ltd [1994]. There must be two plots of land. On the facts, this is satisfied
as Oaktree and Yewtree are on two plots of land next to each other.
Secondly, the DT and the ST must be owned or occupied by different people. A person cannot
have an easement over his own land. On the facts, this is also satisfied as Oaktree is owned by
Tom whilst Yewtree is occupied by Edward as a tenant.
Thirdly, the easement must accommodate the DT. This means that the right must benefit the
land and not simply confer a personal advantage unconnected to the land. It must increase the
normal enjoyment of the land or enhance the social and economic value of the land. In Hill v
Tupper, the right to put pleasure boats on a canal for profit was held to be a personal advantage
instead of an easement. Though in Moody v Steggles [1879], the right to place an
advertisement on the neighbouring land was held to be an easement. As it was held that the
right to put the sign has increased the value of the DT.
On the facts, Edward may argue that the right to park the van in the garage is unlikely to satisfy
this element as it does not confer a benefit to the land and is merely a personal right granted to
Tom. Though Tom could counter-argue that the right to park has enhanced his normal
enjoyment of the land as he might not have sufficient space to park his van at Oaktree. Further,
it can also be argued that the right to lay pipes beneath the soil of Oaktree have enhanced the
value of the land as it was the least expensive and most direct route by which the gas supply
could be carried from the main road to Yewtree. Lastly, Edward may argue that the right to use
the track across Oaktree garden as a shortcut to the nearby river to go fishing has enhanced his
normal enjoyment of the land. In addition, both lands must be sufficiently proximate to each
other, as per Bailey v Stevens. This could be satisfied on the facts as both lands were initially one
plot of land which was then separated.
Moving on, the easement must be capable of forming the subject matter of the grant, i.e. it
must be sufficiently certain, definite and precise. There must also be a capable grantor and
capable grantee which is satisfied by the facts. The courts have recognised a long list of rights as
capable of being an easement. On the facts, the right of way as per Borman v Griffith, and the
In 2015, Tom decided to build two houses on a vacant plot of land which he was the
registered proprietor. He completed the first house, Oaktree, and decided to live there. When
Tom finished building the second house, Yewtree, he leased it by deed to Edward for two
years. A little while after moving into Yewtree, Edward laid pipes beneath the soil of Oaktree’s
garden. This was the least expensive and most direct route by which the gas supply could be
carried from the main road to Yewtree. Tom did not mind because Edward agreed that Tom
could keep his van in the garage belonging to Yewtree. Edward also used the track across
Oaktree garden as a shortcut to the nearby river to go fishing. Tom did not mind this and
sometimes joined Edward fishing.
In February 2017, Tom granted Edward a new lease of Yewtree for six years; soon afterwards
they had a furious row where Tom asked Edward to stop using his garden as a shortcut to the
river and also demanded that he remove the gas pipes running through Oaktree, Edward
responded by ordering Tom to remove his van from the garage of Yewtree.
Advise the parties as to their respectives rights and obligations.
Rights Tom is claiming
- Right to park van in garage (implied reservation)
Rights Edward is claiming
- Right to use track as shortcut (implied grant)
- Right to lay pipes (implied grant)
As per the question, this paper shall advise Tom and Edward as to their respective rights and
obligations. The rights in question are the right to park the van in Yewtree’s garage, the right to
lay pipes beneath the soil of Oaktree, and the right to use the track across Oaktree’s garden.
, This paper will consider whether the above rights are personal rights given by the landowner
which could be revoked at any time, or easements which are capable of binding the landowner.
Essentials of an Easement
As per Lord Evershed MR in Ellenborough Park [1956], several elements need to be satisfied in
order to establish the rights as easements. First of all, there must be a dominant tenement (DT)
i.e. the benefitting land, and a servient tenement (ST) i.e. the burdened land. It was held to be
impossible for easements to exist independently of a land, as seen in Blenheim Estates Ltd v
Ladbroke Retail Parks Ltd [1994]. There must be two plots of land. On the facts, this is satisfied
as Oaktree and Yewtree are on two plots of land next to each other.
Secondly, the DT and the ST must be owned or occupied by different people. A person cannot
have an easement over his own land. On the facts, this is also satisfied as Oaktree is owned by
Tom whilst Yewtree is occupied by Edward as a tenant.
Thirdly, the easement must accommodate the DT. This means that the right must benefit the
land and not simply confer a personal advantage unconnected to the land. It must increase the
normal enjoyment of the land or enhance the social and economic value of the land. In Hill v
Tupper, the right to put pleasure boats on a canal for profit was held to be a personal advantage
instead of an easement. Though in Moody v Steggles [1879], the right to place an
advertisement on the neighbouring land was held to be an easement. As it was held that the
right to put the sign has increased the value of the DT.
On the facts, Edward may argue that the right to park the van in the garage is unlikely to satisfy
this element as it does not confer a benefit to the land and is merely a personal right granted to
Tom. Though Tom could counter-argue that the right to park has enhanced his normal
enjoyment of the land as he might not have sufficient space to park his van at Oaktree. Further,
it can also be argued that the right to lay pipes beneath the soil of Oaktree have enhanced the
value of the land as it was the least expensive and most direct route by which the gas supply
could be carried from the main road to Yewtree. Lastly, Edward may argue that the right to use
the track across Oaktree garden as a shortcut to the nearby river to go fishing has enhanced his
normal enjoyment of the land. In addition, both lands must be sufficiently proximate to each
other, as per Bailey v Stevens. This could be satisfied on the facts as both lands were initially one
plot of land which was then separated.
Moving on, the easement must be capable of forming the subject matter of the grant, i.e. it
must be sufficiently certain, definite and precise. There must also be a capable grantor and
capable grantee which is satisfied by the facts. The courts have recognised a long list of rights as
capable of being an easement. On the facts, the right of way as per Borman v Griffith, and the
