Easements
1. Introduction:
Easement = a right benefiting one piece of land (the dominant tenement) that is
enjoyed over another landowner’s land (the servient tenement).
May be positive – allows the owner of the dominant land to do something on
the servient land, e.g., to use a road.
May be negative – limits what the owner of the servient land may do on the
servient land.
Less common.
Question = whether the particular easements are enforceable.
Whether the right is capable of being an easement is established by the requirements
in Re Ellenborough –
(1) There must exist dominant and servient tenements.
(2) The easement must accommodate the dominant tenement.
(3) There must be prior diversity of occupation.
(4) The right must be capable of lying in grant.
2. Dominant and Servient Tenements:
There must exist dominant (i.e., the land benefited by the easement) and servient
(i.e., land burdened by the easement) tenements.
London & Blenheim Estates v Ladbroke
3. Accommodate the Dominant Tenement:
The easement must benefit the dominant tenement by improving it or making its use
more convenient in some way connected with the normal use of the property.
Re Ellenborough Park
Cannot be purely personal, must have a proprietary element –
Hill v Tupper – question is whether anyone in the same position would get
the benefit/advantage.
The dominant and servient tenements must be sufficiently proximate – i.e., nearby,
even if the properties are not direct neighbours.
Bailey v Stephens
The benefit can be to a business –
Moody v Steggles – a business owner had an advertising billboard on the side
of the property.
The easement does not have to be necessary, as long as it enhances the utility of the
property.
Polo Woods v Shelton Agar
4. Prior Diversity of Occupation:
The tenements must be owned by different people.
“A man cannot have an easement over his own land” – Roe v Siddons.
Diversity exists if the occupiers are diverse – meaning a landlord can give an
easement to a tenant.
Wright v Macadam
BUT – subsequent case law has cast doubt on how essential the diversity of
occupation requirement is.
Under the rule in Wheeldon v Burrows, it is possible to create a “quasi-
easement” benefiting one piece of land over another piece of land where both
pieces of land are owned by the same person.
This can include rights of way – Wood v Waddington.
5. Capable of Lying in Grant:
The right must be capable of being the subject matter of a deed.
Must be capable of reasonably exact description.
Phipps v Pear – any easement must be in the general nature of rights recognised as
easements in order to lie in grant.
, Examples:
- Right of way – Borman v Griffith
- Right of light
- Right of storage – Wright v Macadam
- Right of signage – Moody v Steggles
- Right of structural support
- Right to water in defined channel
- Right to garden – Re Ellenborough
- Right to recreational facilities – Regency Villas v Diamond Resorts
o BUT – may distinguish between case of residential property and
recreational facilities (leisure complex)
o SO – recreational rights can accommodate the land if the dominant
land serves a recreational purpose.
Where the actual or intended use of the dominant tenement is
itself recreational, as will generally be the case for holiday
timeshare developments, the accommodation condition will
generally be satisfied.
The courts will not recognise new negative easements.
Hunter v Canary Wharf
BUT – the list of positive easements is not closed.
Regency Villas
Issue of excessive demands on the servient land?
Additional Criteria for Easements:
The court in Regency Villas found that there were a series of miscellaneous
requirements which are held to be essential to the characteristics of an
easement.
(1) Must not require expenditure by the servient tenement owner:
BUT – note Rance v Elvin:
Concerned a right to allow water through pre-existing pipes
where the servient tenement owner was legally obliged to
pay the water meter in full for both owners.
The court held that this was allowed because the dominant
tenement owner was liable under a quasi-contract to
reimburse him.
(2) Must not amount to exclusive possession:
Lord Briggs’ discussion on the ouster principle which rejects as an
easement the grant of rights which, on one view, deprive the servient
owner of reasonable beneficial use of the servient tenement or, on the
other view, deprive the servient owner of lawful possession and
control of it.
In the Scottish case of Moncrieff v Jamieson – Lord Scott
and Lord Neuberger indicate a preference to a test based on
‘possession and control’ rather than the stricter threshold of
‘reasonable use’ used in Batchelor v Marlow.
Lord Scott distinguished between sole user and exclusive
possession, giving the example that the sole use of a shed for
storage does not prevent the servient owner from using the
shed for any purposes of his own that do not interfere with
the right to store there.
(3) Must not depend on permission by the servient tenement owner.
6. Acquiring an Easement:
An easement can either be granted expressly or impliedly or acquired by
prescription.
7. Express Acquisition:
1. Introduction:
Easement = a right benefiting one piece of land (the dominant tenement) that is
enjoyed over another landowner’s land (the servient tenement).
May be positive – allows the owner of the dominant land to do something on
the servient land, e.g., to use a road.
May be negative – limits what the owner of the servient land may do on the
servient land.
Less common.
Question = whether the particular easements are enforceable.
Whether the right is capable of being an easement is established by the requirements
in Re Ellenborough –
(1) There must exist dominant and servient tenements.
(2) The easement must accommodate the dominant tenement.
(3) There must be prior diversity of occupation.
(4) The right must be capable of lying in grant.
2. Dominant and Servient Tenements:
There must exist dominant (i.e., the land benefited by the easement) and servient
(i.e., land burdened by the easement) tenements.
London & Blenheim Estates v Ladbroke
3. Accommodate the Dominant Tenement:
The easement must benefit the dominant tenement by improving it or making its use
more convenient in some way connected with the normal use of the property.
Re Ellenborough Park
Cannot be purely personal, must have a proprietary element –
Hill v Tupper – question is whether anyone in the same position would get
the benefit/advantage.
The dominant and servient tenements must be sufficiently proximate – i.e., nearby,
even if the properties are not direct neighbours.
Bailey v Stephens
The benefit can be to a business –
Moody v Steggles – a business owner had an advertising billboard on the side
of the property.
The easement does not have to be necessary, as long as it enhances the utility of the
property.
Polo Woods v Shelton Agar
4. Prior Diversity of Occupation:
The tenements must be owned by different people.
“A man cannot have an easement over his own land” – Roe v Siddons.
Diversity exists if the occupiers are diverse – meaning a landlord can give an
easement to a tenant.
Wright v Macadam
BUT – subsequent case law has cast doubt on how essential the diversity of
occupation requirement is.
Under the rule in Wheeldon v Burrows, it is possible to create a “quasi-
easement” benefiting one piece of land over another piece of land where both
pieces of land are owned by the same person.
This can include rights of way – Wood v Waddington.
5. Capable of Lying in Grant:
The right must be capable of being the subject matter of a deed.
Must be capable of reasonably exact description.
Phipps v Pear – any easement must be in the general nature of rights recognised as
easements in order to lie in grant.
, Examples:
- Right of way – Borman v Griffith
- Right of light
- Right of storage – Wright v Macadam
- Right of signage – Moody v Steggles
- Right of structural support
- Right to water in defined channel
- Right to garden – Re Ellenborough
- Right to recreational facilities – Regency Villas v Diamond Resorts
o BUT – may distinguish between case of residential property and
recreational facilities (leisure complex)
o SO – recreational rights can accommodate the land if the dominant
land serves a recreational purpose.
Where the actual or intended use of the dominant tenement is
itself recreational, as will generally be the case for holiday
timeshare developments, the accommodation condition will
generally be satisfied.
The courts will not recognise new negative easements.
Hunter v Canary Wharf
BUT – the list of positive easements is not closed.
Regency Villas
Issue of excessive demands on the servient land?
Additional Criteria for Easements:
The court in Regency Villas found that there were a series of miscellaneous
requirements which are held to be essential to the characteristics of an
easement.
(1) Must not require expenditure by the servient tenement owner:
BUT – note Rance v Elvin:
Concerned a right to allow water through pre-existing pipes
where the servient tenement owner was legally obliged to
pay the water meter in full for both owners.
The court held that this was allowed because the dominant
tenement owner was liable under a quasi-contract to
reimburse him.
(2) Must not amount to exclusive possession:
Lord Briggs’ discussion on the ouster principle which rejects as an
easement the grant of rights which, on one view, deprive the servient
owner of reasonable beneficial use of the servient tenement or, on the
other view, deprive the servient owner of lawful possession and
control of it.
In the Scottish case of Moncrieff v Jamieson – Lord Scott
and Lord Neuberger indicate a preference to a test based on
‘possession and control’ rather than the stricter threshold of
‘reasonable use’ used in Batchelor v Marlow.
Lord Scott distinguished between sole user and exclusive
possession, giving the example that the sole use of a shed for
storage does not prevent the servient owner from using the
shed for any purposes of his own that do not interfere with
the right to store there.
(3) Must not depend on permission by the servient tenement owner.
6. Acquiring an Easement:
An easement can either be granted expressly or impliedly or acquired by
prescription.
7. Express Acquisition:
