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Law Notes Land Law Notes

Easements Notes

Updated Easements Notes

Land Law Notes

Land Law

Approximately 987 pages

Land Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB land law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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Easements and profits fit within the old category of incorporeal hereditaments. This places greater stress upon the rights rather than the property. They are property rights in that they may bind purchasers of the land adversely affected. The right must benefit the adjoining land. An easement is usually the right to do something on the servient land, or (in a few cases) to prevent something from being done on the servient land. The most common easements are rights of way, rights to run drains across servient land, rights of light and rights of support. However, there is no finite list of easements: rights as varied as storage, use of chimney flues, putting up a clothes line and use of a lavatory have been accepted. Defining the exact requirements of an easement seems to have been a task which has consistently troubled the courts; the usual starting point is the decision in Re Ellenborough Park.

  • Law Com No 327, paras 3.11-3.70, 3.188-3.211

    • An easement can currently be implied by virtue of a number of separate rules:

      • Necessity: claims are only successful where land is absolutely inaccessible or useless without the easement. Must exist at time of disposition except where knew would arise at a later date.

      • Easements of intended use: where necessary to give effect to the intentions (express or implied) of the parties (e.g. Pwllbach Colliery v Woodman). Can take account of previous negotiations although this does not sit easily with contractual rule set out in ICS v West Bromwich Building Society. Has roots in doctrine of non-derogation from a grant.

      • Wheeldon v Burrows: On disposition of part of a property quasi-easements used by the seller may be transformed into easements in favour of the buyer. Can be implied if continuous and apparent, necessary for reasonable use and enjoyment and used at the time of the grant by the common owner for the benefit of the part granted. Transfer does not have to be for value. Can exclude operation of the rule by express provision or implication.

      • Recommendations:

        • In determining whether an easement should be implied it should not be material whether the easement would take effect by reservation or grant.

        • Single test put forward: Easement should be implied where it is necessary for the reasonable use of the land at that date bearing in mind:

          • Use of the land at the time of grant;

          • Presence on the servient land of any relevant physical features;

          • Any common intention as to future use of the land;

          • Available routes for easement sought’

          • Potential interference and inconvenience for servient owner.

    • S62 LPA is better regarded as an aspect of the express creation of easements rather than a form of implication. Section can operate to create new easements and profits.

      • On conveyance to a tenant of the freehold any property rights annexed are upgraded.

      • Other rights which are not profits and easements, but could be, are transformed by their incorporation into the conveyance into interest appurtenant to the estate sold.

      • Section 62 overlaps to some extent with the rule in Wheeldon v Burrows because it can transform into an easement a quasi-easement. The overlap is not complete; while section 62 operates only where there is a conveyance, Wheeldon v Burrows will operate where there is only a contract, or where the quasi-easement was being enjoyed at the time of the contract but not of the conveyance.

      • Recommendations:

        • S62 LPA should not longer operate to transform precarious benefits into legal easements or profits on conveyance of the land.

        • Should continue to convert leasehold easements into freehold ones upon conveyance.

    • Easements that confer the right to extensive/exclusive use of the servient land:

      • As the law stands an easement must not confer exclusive possession of the servient land; nor must it prevent the servient owner from making reasonable use of it.

      • The law should remain that if the dominant owner is granted exclusive possession of land then, while it may be a grant of a lease or a freehold, it cannot be an easement.

      • The ouster principle should be abolished; so long as falls short of exclusive possession than should be a valid easement even if it deprives owner of all reasonable use.


  • Re Ellenborough Park [1956] Ch 131: Houses were built on plot surrounding a park, conveyed with the full enjoyment of any such easements as should relate to the park so long as they made fair contributions to the upkeep; each covenanting to do so. Park was vested in P who sought declaration as to the nature of the rights which related to the park. Evershed MR:

    • Listed four characteristics of an easement:

      • Must be a dominant and a servient tenement;

      • Easement must accommodate the dominant tenement;

      • Owners of dominant/servient tenement must be different persons:

      • Right must be capable of forming subject matter of a grant; includes following Q’s:

        • Whether the right is of a too wide and vague character;

        • Whether, if effective would amount to joint occupation or would substantially deprive the owner of legal possession;

        • Whether the rights are ones of mere recreation, possessing no quality of utility or benefit, and on such grounds cannot qualify as easements.

    • Clear from the deeds that owners were engaged in a scheme of development designed to produce a result of common experience; a row of houses facing a park which was appurtenant to each and all of them;

      • In substance the park was a single large private garden for the residents:

      • Does not matter that some plots did not directly face the park.

    • Whilst clear that the park did enhance the value of properties, that is not sufficient for accommodation; must also show that it was connected with the normal enjoyment of the property, the connection being one of fact which depends largely on the nature of the tenement and the right granted.

    • Rejected submission that the right was personal only (akin to one to play on cricket ground for free) and claimed that was like a garden; that...

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