What is an easement?
An easement is a right for one landowner to make use of another parcel of land for the benefit of their own land. Example: A right of way over your neighbor’s property to access your house. Memory tip: Think “Easy-ment” = makes it easier for you to use your land by using someone else’s land.
What is a profit (profit à prendre) and how does it differ from an easement?
Profit: A right to go onto someone else’s land and remove something that exists naturally. Examples: catching fish, grazing animals, extracting gravel/chalk, hunting/shooting. KEY DIFFERENCE: Easement = use someone else’s land (nothing removed). Profit = take something from someone else’s land. Memory tip: Profit = you PROFIT by taking something away (fish, minerals, game).
What requirements must an easement meet under s 1(2)(a) LPA to be capable of being legal?
The right must be granted for: Freehold (estate in fee simple absolute in possession) = forever, OR Leasehold (term of years absolute) = fixed ascertainable duration.
CRITICAL RULE: An easement for uncertain duration is NOT capable of being legal and exists in equity only (s 1(3) LPA 1925). Example: ✓ “Right of way for 99 years” = legal (fixed duration). ✗ “Right of way until the house is sold” = equitable only (uncertain duration).
What formalities are required to create a legal easement?
General rule: A deed is required (s 52(1) LPA 1925). The deed must meet requirements in s 1 LPMPA 1989.
EXCEPTION: Legal easements CAN be created without a deed through: Implied creation. Prescription (see section 3.3).
Alternative: Agreement complying with s 2 LPMPA 1989 = contract for easement, enforceable in equity (Walsh v Lonsdale doctrine).
What is a servient tenement and servient owner?
Servient tenement: The land over which the easement is exercised (the burdened land). Servient owner: The owner of the servient tenement. Memory tip: “Servient” sounds like “servant” - this land serves the other land by bearing the burden of the easement.
What is a dominant tenement and dominant owner?
Dominant tenement: The land that enjoys the right (the benefitted land). Dominant owner: The owner of the dominant tenement. Memory tip: “Dominant” = this land is in the dominant position because it gets the benefit!
What is the difference between a grant and a reservation of an easement?
GRANT: Landowner creates an easement in favor of the buyer. Seller keeps land A, sells land B to buyer. Seller grants buyer a right over land
A. RESERVATION: Landowner creates an easement in favor of their own retained land when selling. Seller keeps land A, sells land B to buyer. Seller reserves a right over land B for the benefit of land
A. Memory tip: Grant = Gift to the buyer. Reservation = seller Retains rights for themselves.
Graham owns Home Farm (farmhouse, barn, farmland). He sells the barn to Thomas. The only access to the barn is via a track crossing Graham’s farmland. Drains from Graham’s farmhouse run under the barn. What easements are needed?
GRANT (for Thomas’s benefit): Right of way over the farmland. Farmland = servient tenement. Barn = dominant tenement. RESERVATION (for Graham’s benefit): Right to use drains under the barn. Barn = servient tenement. Farmland = dominant tenement. Key insight: Same property can be BOTH servient (for one easement) AND dominant (for another easement)!
Is there a legal definition or exhaustive list of easements?
NO! No legal definition of easement. No exhaustive list of types. New types CAN be recognized. Key quote: “The categories of servitude and easements must alter and expand with the changes that take place in the circumstances of mankind.” (Dyce v Lady James Hay, 1852). Modern examples recognized: Right to erect satellite dish (analogous to right to erect sign). Right to park (analogous to storage). Right to use recreational facilities (Regency Villas - golf course, swimming pool, tennis court).
What are the four essential characteristics from Re Ellenborough Park [1956] that MUST exist for a right to be an easement?
There must be a dominant and servient tenement.
The easement must accommodate the dominant tenement.
The dominant and servient tenements must NOT be both owned and occupied by the same person.
The easement must be capable of forming the subject matter of the grant.
Memory acronym: DACS. Dominant & servient land. Accommodate the dominant land. Cannot have same owner/occupier. Subject matter of grant. CRITICAL: ALL FOUR must be present!
Why must there be both a dominant and servient tenement? What does “in gross” mean?
Rule: Easement must be attached (appurtenant) to dominant land. Must have identifiable dominant AND servient tenement at time of grant.
“IN GROSS” = NOT ALLOWED for easements: Only servient tenement identified. No dominant land. Creates only a licence, not an easement.
Why this rule? Easements become part of the land (s 205 LPA). Future owners enjoy the benefit. Prevents burdens of uncertain extent that make land unattractive. EXCEPTION: Profits CAN exist in gross (only servient tenement needed).
What does it mean for an easement to “accommodate the dominant tenement”?
Rule: The right must be connected with normal enjoyment of the dominant tenement. Proximity test: Dominant and servient land don’t need to adjoin. BUT must be close enough to establish a connection. Example: Right of way over land in Northumberland CANNOT accommodate land in Kent (Bailey v Stephens). Land separated by another parcel CAN work if close enough (Pugh v Savage). Benefit test: Must benefit the land itself, not just owner personally. Would any owner see it as a benefit? Does it improve marketability?
How do you distinguish between a right that benefits the land versus one that benefits the owner personally?
VALID EASEMENTS (benefit the land): ✓ Re Ellenborough Park: Right to use communal garden - connected to ordinary use of houses. ✓ Moody v Steggles: Right to place pub sign on neighbor’s land - supports business run ON the dominant land. NOT EASEMENTS (personal benefit): ✗ Hill v Tupper: Right to put pleasure boats on canal - independent business enterprise, no connection to ordinary use of land. Test questions: Does it improve land’s marketability? Would ANY owner see it as beneficial to the land? Is it connected to how the land is ordinarily used?
Why can’t you have an easement over your own land? What are quasi-easements?
Basic principle: “You cannot have an easement over your own land”. Dominant and servient owners must be different people. Landlord-tenant situation: ✓ Principle IS satisfied. Landlord owns freehold, tenant occupies under lease. Land occupied by different people. Landlord CAN create easement for tenant over retained land.
QUASI-EASEMENTS: Rights exercised by sole owner of two properties over one of them. Has all easement characteristics EXCEPT diversity. Can be converted to easements on sale of part (see Wheeldon v Burrows).
What are the FOUR main points that emerge from “capable of forming subject matter of grant”?
Four key requirements:
(a) Must be capable of reasonably exact definition.
(b) Must NOT involve any expenditure by servient owner.
(c) Must NOT be so extensive as to amount to joint possession.
(d) Law is very cautious about new negative easements. Plus: Must have capable grantor and capable grantee. Grantor must have power to grant. Grantee cannot be “vague and fluctuating body” (e.g., “inhabitants of village”).
What does “reasonably exact definition” mean for easements?
Rule: Easement must be clearly defined. INVALID - Too vague: ✗ General flow of air to timber shed - “too vague and indefinite” (Harris v De Pinna). ✗ General right to light - no such thing exists. ✗ Right to a view - “law does not give action for things of delight” (William Aldred’s Case). VALID - Sufficiently defined: ✓ Right to light via defined aperture (e.g., window) - Colls v Home and Colonial Stores. ✓ Recreational facilities where right meets all Re Ellenborough Park criteria (Regency Villas - golf, pool, tennis). Infringement test for light: Light must be “sufficient according to usual notions of mankind for comfortable enjoyment of building, bearing in mind type of building and locality”.
Can an easement require the servient owner to spend money or do something positive?
GENERAL RULE: NO! “Essential feature of easement: it merely requires servient owner to SUFFER something to be done. A positive obligation to do something is inconsistent with easement.” (Rance v Elvin). Examples: Right of way granted = NO implied obligation on landowner to maintain it. But dominant owner HAS right to carry out repairs themselves. Right of support = servient owner cannot deliberately withdraw support. ODD EXCEPTION: Easement of fencing (Crow v Wood) - requires servient owner to maintain fence. Called “spurious kind of easement”. Limited to rural settings (stock-proof fences for farms).
What does it mean for an easement to be “too extensive”?
Rule: Easement cannot give exclusive, joint, or substantially permanent possession of servient tenement. Must not exclude grantor completely from possession.
Judged both:
Temporally - amount of time taken. Spatially - amount of space used.
Storage cases: ✓ Wright v MacAdam: Storing coal in shed = valid (but criticized, no analysis of whether exclusive use). ✗ Grigsby v Melville:
Storing articles in cellar = TOO EXTENSIVE (defendant had filled entire cellar).
Key principle: Question of fact and degree. Greater intensity of use = less likely to be easement.
What was the outcome in Copeland v Greenhalf regarding storage and repair of vehicles?
Facts (Example 3.2): Mr Copeland owned orchard with access via long narrow strip (“the Land”). Mr Greenhalf (wheelwright) claimed easement to store AND repair vehicles on the Land for his business. Held: TOO EXTENSIVE. Why: No limit on number of vehicles. No limit on length of time stored. Amounted to claim for joint beneficial use over the Land. NOT an easement. Key learning: Unlimited use in time and space = too extensive.
Can there be an easement of parking? How has the law evolved?
London & Blenheim (1992) - obiter: Could be easement to park IF servient land sufficiently large. Test: Would it leave servient owner without reasonable use of land? Batchelor v Marlow (2003): 6 cars parked 8:30am-6pm Mon-Fri covering whole servient land = NO EASEMENT. Left appellant with “no reasonable use of land” - ownership became illusory. Moncrieff v Jamieson (2007) - Privy Council criticism: Lord Scott: Test should be whether servient owner retains possession and control. Can still build above/under parking area. Can place advertising on walls. Exclusive occupation acceptable IF servient owner keeps possession/control. Virdi v Chana (2008): Court felt bound by Batchelor v Marlow (Privy Council didn’t overrule it). Dismissed parking easement claim. Current position: Somewhat unclear - both tests may apply.
What is a negative easement and why is the law cautious about creating new ones?
POSITIVE easement: Dominant owner performs activity (way, drainage, erect sign). NEGATIVE easement: Right prevents servient owner doing something on their land. ONLY recognized negative easements: Light. Air. Support. NEW ones NOT recognized: ✗ TV reception (Hunter v Canary Wharf) - would impose immense burden on development. Why cautious? Prevents servient owner enjoying land fully. Restricts legitimate development. Creates significant burdens. Key for SQE: No new negative easements will be created!
What are the detailed rules about easements of light?
No automatic right to light in English law. Requirements: Must be via defined aperture (e.g., window) - not general flow. Must prove infringement: Amount of remaining light reduced below that “required for ordinary purposes of inhabitancy or business according to ordinary notions of mankind”. Infringement assessment: Includes past AND future purposes (if reasonable). Depends on actual nature of property. Depends on how it’s being used. Example 3.6 learning: Conservatory built in 2003. Neighbor’s extension would block light significantly. Conservatories need lots of natural light. Over 20 years use = can claim by prescription.
Harrison owns Stoney Farm (farmhouse, outbuildings, farmland). He grants Mary (owner of adjoining Hazy Meadow) the right to park her large pizza van on small area next to entrance. Is this an easement?
Applying four characteristics: ✓ Dominant (Hazy Meadow) and servient (Stoney Farm) tenements exist. ✗ FAILS accommodation test - appears to benefit Mary’s pizza business, not attached to the land itself. ✓ Different owners (Harrison owns Stoney Farm, Mary owns Hazy Meadow). ✗ TOO EXTENSIVE - large van on small area leaves Harrison with no reasonable enjoyment. CONCLUSION: NOT an easement. Fails characteristics 2 and 4. Mary has only a licence. Key learning: Must benefit the LAND and not be too extensive!
What are the six methods by which an easement can be created?
Express grant/reservation.
Implied by necessity.
Implied by common intention.
The rule in Wheeldon v Burrows.
Section 62 LPA 1925.
Prescription.
Note: Courts increasingly treat necessity and common intention as one category.
