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What is an easement and how are they created and used?

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16th February 2016

Imagine a farmhouse landlocked on all sides by fields, half a mile from the nearest road. The farmhouse and the fields are in separate ownership. How does the owner of the farmhouse get to the road? The answer to be found in the law of easements.

An easement is the right of one landowner to make use of another nearby piece of land for the benefit of his own land. An easement may take many forms, however the most commonly encountered easements are as follows:

• A right of way;
• A right to light;
• A right of support.

The classic case of Re: Ellenborough Park [1956] Ch. 131 sets out the four essential characteristics of an easement which are as follows:

• There must be a dominant and servient tenement;
• The easement must accommodate the dominant tenement;
• The dominant and servient owners must be different people;
• The right must be capable of forming the subject matter of a grant.

So, what does all that mean? First, it will be noted that the concept of dominant and servient land is central to the existence of an easement. The dominant land is the land owned by the owner of the right – the farmhouse in our above example. The easement is described as “appurtenant” to the dominant land. The servient land is the land which bears the burden of the easement, and in our example would be the fields running down to the road. The dominant and servient owners must be different people.

When it is said that the easement must “accommodate” the dominant land, this means that there must be some direct beneficial impact on the land itself – the easement should not exist only for the personal benefit of the owner. This generally means that the dominant land will be situated next to to the servient land. In Hill v Tupper (1863) 159 ER 51 it was held that an exclusive right to put pleasure boats on a canal was not an easement – the right did not “accommodate” the land, rather it only benefitted the business of the owner of the right.

Finally, the easement must be capable of forming the subject matter of a grant. This is because an easement is a registrable property right, and therefore must be capable of being granted by deed, even if it has not been so granted. Therefore, all of the necessary legal formalities must be capable of being complied with, for example:

• Both parties must have capacity both to grant and acquire the legal right.
• The easement must be clearly defined. A right to a “beautiful view” is to vague to be an easement;
• Whilst it is technically possible to create a new type of easement not previously recognised by law, the court will approach such claims cautiously;
• Generally, the easement should not involve expenditure of money by the servient owner;
• The easement must not be so extensive so as to put the servient owner out of possession of his land. For example, in Grigsby v Melville [1972] 1 WLR 1355 an alleged right to store goods in a cellar was rejected because the right amounted to exclusive use of the small cellar space.

There are a number of ways in which an easement can be created. The first is by an express grant by the servient owner to the dominant owner, or by the express reservation of the right when the dominant owner sells part of his land to the servient owner. An expressly granted or reserved easement will only be a legal interest in land if it is created by deed and, in respect of registered land, completed by registration.

In some cases, an easement may be created by implication. An easement will only be implied if:

• It is necessary to so imply it;
• The parties had a common intention at the time of the sale of the land that there would be an easement;
• By the operation of s.62 of the Law of Property Act 1925;
• Where the land was previously in common ownership and:
  • the common owner exercised over one part of the plot a right which could have been an easement if the plots were in separate ownership;
  • the exercise of the right was continuous and apparent; and
  • the exercise of the right is necessary for the reasonable enjoyment of the dominant land. (This is known as the rule in Wheeldon v Burrows (1879) 12 Ch D 31)

In certain circumstances, an easement can also be obtained by a long period of use of the right, known as an easement by prescription.

It will be seen from the above that the types of easement in existence and the methods by which an easement can be acquired are many and varied. This article is introductory only and is intended to provide an overview of the law – reference to the relevant texts and authorities should be made in every case. This article will be followed by a series of more detailed commentaries on the law of easements.

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