LAND LAW
LEARNING CYCLE 7 – EASEMENTS
Lecture: EASEMENTS
Easements are rights which exist over somebody else’s land (so you always generally have
two pieces of land).
These can be regarded as tricky, largely because we’re using slightly different
language; one which is of two parcels of (dominant and servient) land.
BUT
It’s all about structure: once you have the structure, you can’t go wrong.
There is a lot to get through however with easements.
It’s also a lot simpler than you’d initially believe.
The STRUCTURE
There are three basic, general qualifications:
1) Is the claimed right capable of existing as an easement?
2) Has it been acquired as an easement?
3) Does it bind a third party purchaser?
, 1) Is the Right CAPABLE OF EXISTING AS AN EASEMENT?
This question is answered by the test in Re Ellenborough Park (1955); in this case, Sir
Raymond Evershed MR agreed with the textbook (‘Cheshire and Burn’s Modern Law of Real
Property’) in establishing FOUR CRITERIA for accepting a claimed right as an easement:
1. Is there a dominant and servient tenement?
2. Are they owned by different persons?
3. Does the right ‘accommodate’ [i.e., benefit] the dominant tenement?
4. Does the right ‘lie in grant’?
The issues generally arise in the last two points.
1. Is There a Dominant and Servient Tenement?
This means that there must be two plots of land; which must be close to each other.
The land with the benefit of the right has the dominant tenement.
The land with the burden of the right has the servient tenement.
So, for example, if you and another person live in next-door houses and you have a right
from your house to walk over the other person’s garden, your house has the benefit of that
right (i.e., the dominant tenement) and the other person’s house bears the burden of that
right (i.e., the servient tenement).
We say that an easement cannot exist in gross (i.e., there must be two parcels of
land- dominant and servient tenements)
2. Are They Owned By Different Persons?
The dominant and servient tenements must be owned by different people.
‘Owned’ has a broader meaning here: it doesn’t just mean ‘owner-occupier’ but also
‘rented’.
So, for example, students could easily have an easement over their landlords’ land if they
are a tenant (this is possible).
3. Does the Right ‘Accommodate’ the Dominant Tenement?
So, does the right benefit the use of the land? It must be a benefit to the land, not just to
the person using it.
In Re Ellenborough Park, Sir Raymond Evershed, for example, said that a right to
free entry to Lords cricket ground couldn’t be an easement because this benefits the
person; therefore, it’s a personal right.
LEARNING CYCLE 7 – EASEMENTS
Lecture: EASEMENTS
Easements are rights which exist over somebody else’s land (so you always generally have
two pieces of land).
These can be regarded as tricky, largely because we’re using slightly different
language; one which is of two parcels of (dominant and servient) land.
BUT
It’s all about structure: once you have the structure, you can’t go wrong.
There is a lot to get through however with easements.
It’s also a lot simpler than you’d initially believe.
The STRUCTURE
There are three basic, general qualifications:
1) Is the claimed right capable of existing as an easement?
2) Has it been acquired as an easement?
3) Does it bind a third party purchaser?
, 1) Is the Right CAPABLE OF EXISTING AS AN EASEMENT?
This question is answered by the test in Re Ellenborough Park (1955); in this case, Sir
Raymond Evershed MR agreed with the textbook (‘Cheshire and Burn’s Modern Law of Real
Property’) in establishing FOUR CRITERIA for accepting a claimed right as an easement:
1. Is there a dominant and servient tenement?
2. Are they owned by different persons?
3. Does the right ‘accommodate’ [i.e., benefit] the dominant tenement?
4. Does the right ‘lie in grant’?
The issues generally arise in the last two points.
1. Is There a Dominant and Servient Tenement?
This means that there must be two plots of land; which must be close to each other.
The land with the benefit of the right has the dominant tenement.
The land with the burden of the right has the servient tenement.
So, for example, if you and another person live in next-door houses and you have a right
from your house to walk over the other person’s garden, your house has the benefit of that
right (i.e., the dominant tenement) and the other person’s house bears the burden of that
right (i.e., the servient tenement).
We say that an easement cannot exist in gross (i.e., there must be two parcels of
land- dominant and servient tenements)
2. Are They Owned By Different Persons?
The dominant and servient tenements must be owned by different people.
‘Owned’ has a broader meaning here: it doesn’t just mean ‘owner-occupier’ but also
‘rented’.
So, for example, students could easily have an easement over their landlords’ land if they
are a tenant (this is possible).
3. Does the Right ‘Accommodate’ the Dominant Tenement?
So, does the right benefit the use of the land? It must be a benefit to the land, not just to
the person using it.
In Re Ellenborough Park, Sir Raymond Evershed, for example, said that a right to
free entry to Lords cricket ground couldn’t be an easement because this benefits the
person; therefore, it’s a personal right.
