Easements
Land Author: Victoria Sayles
Dixon’s article: A Play around with easements
1. Clear Support for Recreational Easements: Dixon supports the Supreme Court’s decision
in Regency Villas, which confirmed that easements can exist purely for recreation (like using
a golf course or pool), not just as a bonus to living in a home.
2.Improved Use, Not Just Value: He explains that the easement was valid because it made
the land more useful to owners, not just more expensive — which meets the legal test from
Re Ellenborough Park.
3.Poor Legal Setup Highlighted: Dixon criticises the way the original agreement was drafted,
noting that no one was legally required to maintain the facilities, which caused them to fall
into disrepair. He says a lease with proper covenants would have worked better.
Easement= easement in land law is a legal right that allows one party to use another party’s
land for a specific purpose, without owning it. Easements typically benefit one piece of land
(the dominant tenement) and burden another (the servient tenement). It has proprietary
interest that has legal capacity (s 1(2) LPA 1925) where created appropriately (see Status of
the easement acquired’). It gives no right of possession or occupation over the land, save to
the extent that is required to enjoy that right.
Key Features of an Easement:
1. Must Involve Two Separate Properties – One benefiting (dominant land) and one
burdened (servient land). 2. Must Benefit the Land – The right must be connected to land
ownership, not just for personal convenience. 3. Must Not Require Ongoing Action by the
Servient Owner – The servient owner should not be required to take positive action, only
allow use. 4. Capable of Being a Legal Right – The right must be clear and well-defined.
Types of Easements: Express Easement – Created through a written agreement, deed, or
contract.Implied Easement – Arises due to necessity or historical use when land is divided.
• Prescriptive Easement – Established through long, continuous, and uninterrupted use
over time (e.g., 20 years under common law).
Examples of Easements: Right of way (e.g., using a neighbor’s driveway to access your
property).
• Right to light (e.g., preventing a neighbor from blocking sunlight with a new building).
• Right to run utilities (e.g., water or sewer lines through another property).
,Easements can be positive (allowing an action) or negative (restricting an action). They can
also be appurtenant (attached to land) or in gross (personal to an individual or company,
like utility companies).
1. Positive Easement - A positive easement gives the dominant owner the right to do
something on the servient land. Examples: Right of way –. Right to use water – Drawing
water from a neighbor’s well. Right to lay utility pipes – Running electricity, water, or
drainage through another’s property.
2. Negative Easement- A negative easement prevents the servient owner from using
their land in a way that would interfere with the dominant land. Right to support – Prevents
the servient owner from demolishing a structure if it provides necessary support to the
dominant owner’s building.Right to light – Stops a servient owner from building in a way
that blocks light to the dominant owner’s windows. Right to air – Prevents construction that
obstructs airflow to the dominant property. Right to a view (rare) – In limited cases,
prevents interference with scenic views.
Re Ellenborough Park - Facts: Ellenborough Park was a private communal garden in
Weston-super-Mare, surrounded by houses. The owners of these houses had been granted
rights to use the garden. When the land was later sold, a dispute arose over whether these
rights were mere personal rights (licenses) or legal easements. The key issue was whether a
right to use a communal garden could constitute an easement under English land law. Held:
The Court of Appeal ruled that the rights to use the garden were valid easements because
they satisfied the four essential requirements of an easement: 1. There must be a
dominant and servient tenement
2. The easement must accommodate the dominant tenement
3. Dominant and servient owners must be different persons
4. The right must be capable of forming the subject matter of a grant
1. There must be a dominant and servient tenement An easement cannot exist in
isolation; it must benefit one piece of land (dominant tenement) and burden another
(servient tenement).
2. The easement must accommodate the dominant tenement The right must be
connected to the land itself, not just for personal convenience. Example: A right of way
benefits the land by providing access, rather than just benefiting the landowner personally.
3. Dominant and servient owners must be different persons The same person cannot
own both pieces of land at the time the easement is created, as an easement is a
right between different landowners.
, 4. The right must be capable of forming the subject matter of a grant The right must
be clear, legally defined, and capable of being granted by deed. It cannot be vague,
overly burdensome, or require constant action from the servient owner.
Ways to Create an Easement
Express Easement - Created by written agreement, deed, or contract between
landowners. Implied Easement (Arises automatically in certain situations) By Necessity:
When land is landlocked, a right of way may be implied to allow access.
By Common Intention: When land is sold or divided, and both parties clearly intended for an
easement to exist (e.g., access to pipes or pathways). Rule in Wheeldon v Burrows: When
land is sold, existing “quasi-easements” (rights used for the benefit of one part of the land
before sale) may become full easements if they are continuous and necessary.
Section 62 of the Law of Property Act 1925: Converts certain rights and permissions into
legal easements when land is transferred. 3. Easement by Prescription (Long-term use) -
Created when someone uses another’s land as of right (without force, secrecy, or
permission) for a long time. Common Law: Typically requires 20 years of continuous use.
• Prescription Act 1832: 20 years’ use = presumed right but can be challenged. 40 years’ use
= absolute right, unless it was with permission.
To be an easement, a right must satisfy the four requirements laid down in Re
Ellenborough Park [1956]:
1 There must be a dominant and servient tenement
The dominant tenement benefits from the exercise of the right; the servient tenement is
burdened by its exercise. Both must be defined at the time of acquisition of the easement:
London & Blenheim Estates v Ladbroke Retail Parks Ltd [1994] states than an easement
cannot exist ‘in gross’, ie unattached to a dominant piece of land.
2. The right must accommodate the dominant tenement
The right must improve the land, making it more useful and convenient, rather than just
benefiting the current owner. The right should be linked to the normal use of the dominant
land, benefiting future owners as well. It must be useful and beneficial for the dominant
land. Remember: Whether a right benefits the dominant land depends on the facts. An
increase in value might show the land is benefiting, but it’s not enough on its own: Re
Ellenborough Park [1956].
A right that gives a commercial benefit can still be valid if it’s connected to the normal use of
the land (compare Hill v Tupper [1863] and Moody v Steggles [1879]).
Access to recreational facilities like a golf course or swimming pool can be an easement, as
shown in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018]. The Supreme Court
Land Author: Victoria Sayles
Dixon’s article: A Play around with easements
1. Clear Support for Recreational Easements: Dixon supports the Supreme Court’s decision
in Regency Villas, which confirmed that easements can exist purely for recreation (like using
a golf course or pool), not just as a bonus to living in a home.
2.Improved Use, Not Just Value: He explains that the easement was valid because it made
the land more useful to owners, not just more expensive — which meets the legal test from
Re Ellenborough Park.
3.Poor Legal Setup Highlighted: Dixon criticises the way the original agreement was drafted,
noting that no one was legally required to maintain the facilities, which caused them to fall
into disrepair. He says a lease with proper covenants would have worked better.
Easement= easement in land law is a legal right that allows one party to use another party’s
land for a specific purpose, without owning it. Easements typically benefit one piece of land
(the dominant tenement) and burden another (the servient tenement). It has proprietary
interest that has legal capacity (s 1(2) LPA 1925) where created appropriately (see Status of
the easement acquired’). It gives no right of possession or occupation over the land, save to
the extent that is required to enjoy that right.
Key Features of an Easement:
1. Must Involve Two Separate Properties – One benefiting (dominant land) and one
burdened (servient land). 2. Must Benefit the Land – The right must be connected to land
ownership, not just for personal convenience. 3. Must Not Require Ongoing Action by the
Servient Owner – The servient owner should not be required to take positive action, only
allow use. 4. Capable of Being a Legal Right – The right must be clear and well-defined.
Types of Easements: Express Easement – Created through a written agreement, deed, or
contract.Implied Easement – Arises due to necessity or historical use when land is divided.
• Prescriptive Easement – Established through long, continuous, and uninterrupted use
over time (e.g., 20 years under common law).
Examples of Easements: Right of way (e.g., using a neighbor’s driveway to access your
property).
• Right to light (e.g., preventing a neighbor from blocking sunlight with a new building).
• Right to run utilities (e.g., water or sewer lines through another property).
,Easements can be positive (allowing an action) or negative (restricting an action). They can
also be appurtenant (attached to land) or in gross (personal to an individual or company,
like utility companies).
1. Positive Easement - A positive easement gives the dominant owner the right to do
something on the servient land. Examples: Right of way –. Right to use water – Drawing
water from a neighbor’s well. Right to lay utility pipes – Running electricity, water, or
drainage through another’s property.
2. Negative Easement- A negative easement prevents the servient owner from using
their land in a way that would interfere with the dominant land. Right to support – Prevents
the servient owner from demolishing a structure if it provides necessary support to the
dominant owner’s building.Right to light – Stops a servient owner from building in a way
that blocks light to the dominant owner’s windows. Right to air – Prevents construction that
obstructs airflow to the dominant property. Right to a view (rare) – In limited cases,
prevents interference with scenic views.
Re Ellenborough Park - Facts: Ellenborough Park was a private communal garden in
Weston-super-Mare, surrounded by houses. The owners of these houses had been granted
rights to use the garden. When the land was later sold, a dispute arose over whether these
rights were mere personal rights (licenses) or legal easements. The key issue was whether a
right to use a communal garden could constitute an easement under English land law. Held:
The Court of Appeal ruled that the rights to use the garden were valid easements because
they satisfied the four essential requirements of an easement: 1. There must be a
dominant and servient tenement
2. The easement must accommodate the dominant tenement
3. Dominant and servient owners must be different persons
4. The right must be capable of forming the subject matter of a grant
1. There must be a dominant and servient tenement An easement cannot exist in
isolation; it must benefit one piece of land (dominant tenement) and burden another
(servient tenement).
2. The easement must accommodate the dominant tenement The right must be
connected to the land itself, not just for personal convenience. Example: A right of way
benefits the land by providing access, rather than just benefiting the landowner personally.
3. Dominant and servient owners must be different persons The same person cannot
own both pieces of land at the time the easement is created, as an easement is a
right between different landowners.
, 4. The right must be capable of forming the subject matter of a grant The right must
be clear, legally defined, and capable of being granted by deed. It cannot be vague,
overly burdensome, or require constant action from the servient owner.
Ways to Create an Easement
Express Easement - Created by written agreement, deed, or contract between
landowners. Implied Easement (Arises automatically in certain situations) By Necessity:
When land is landlocked, a right of way may be implied to allow access.
By Common Intention: When land is sold or divided, and both parties clearly intended for an
easement to exist (e.g., access to pipes or pathways). Rule in Wheeldon v Burrows: When
land is sold, existing “quasi-easements” (rights used for the benefit of one part of the land
before sale) may become full easements if they are continuous and necessary.
Section 62 of the Law of Property Act 1925: Converts certain rights and permissions into
legal easements when land is transferred. 3. Easement by Prescription (Long-term use) -
Created when someone uses another’s land as of right (without force, secrecy, or
permission) for a long time. Common Law: Typically requires 20 years of continuous use.
• Prescription Act 1832: 20 years’ use = presumed right but can be challenged. 40 years’ use
= absolute right, unless it was with permission.
To be an easement, a right must satisfy the four requirements laid down in Re
Ellenborough Park [1956]:
1 There must be a dominant and servient tenement
The dominant tenement benefits from the exercise of the right; the servient tenement is
burdened by its exercise. Both must be defined at the time of acquisition of the easement:
London & Blenheim Estates v Ladbroke Retail Parks Ltd [1994] states than an easement
cannot exist ‘in gross’, ie unattached to a dominant piece of land.
2. The right must accommodate the dominant tenement
The right must improve the land, making it more useful and convenient, rather than just
benefiting the current owner. The right should be linked to the normal use of the dominant
land, benefiting future owners as well. It must be useful and beneficial for the dominant
land. Remember: Whether a right benefits the dominant land depends on the facts. An
increase in value might show the land is benefiting, but it’s not enough on its own: Re
Ellenborough Park [1956].
A right that gives a commercial benefit can still be valid if it’s connected to the normal use of
the land (compare Hill v Tupper [1863] and Moody v Steggles [1879]).
Access to recreational facilities like a golf course or swimming pool can be an easement, as
shown in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018]. The Supreme Court
