This is an extract of our Land Easements And Covenants document, which we sell as part of our Land Law Notes collection written by the top tier of Oxford students.
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Dominant land - to which the right attaches; servient land - over which the right is exercised. Capable of being legal, does not mean they always are, but they can be. Easements can either be positive/negative, Lord Denning described the difference in Phipps v Pears  "positive easements...which give the owner of land a right to do something on or to his neighbour's land...and negative easements...which gives him a right to stop his neighbour from doing something on his land" e.g. not blocking the light. Negative easements constitute a much greater limitation on the servient land than a positive easement.
Summarised in Re Ellenborough Park 
(i) There must be a dominant and servient tenement --- must be 2 pieces of land, Law Comm considered whether we should have more easements in gross, and decided against it (would require fundamental rethink of easement definition):
* Must identify the dominant tenement --- established in London & Blenheim Estates Ltd v Ladbroke Retail Park  that identification is key, in order to avoid burdening land to an uncertain extent.
* Rule in Harris v Flower  --- dominant owner who acquires additional land close to or adjacent to the dominant land may wish to use an easement for the benefit of the additional land - held in Harris v Flower that he is unable to do so. Examples: Das v Linden Mews  mews owners acquired land at end of street to park cars - could not use easement over street to park their cars on additional land; held in Peacock v Custins  that "ancillary" use will not fall foul of the rule, e.g. additional rooms in a house is ancillary use of the original house in Massey v Bouldon . Court identified in Macepark (Whittlebury) v Sergeant (No.2)  that use will be 'ancillary' if it is not for the benefit of the additional land e.g. going for a picnic doesn't benefit the additional land, but using the easement to cultivate it does. Many critics of the rule - Paton and Seabourne argue it is "guilt by intention" if innocent use of the land becomes illegal by intention to use additional land.
* Appurtenant to the dominant tenement --- easements attach to the estate e.g. if dominant tenement holder is leaseholder, it lasts as long as the lease, thus, if the lease is terminated early, so too is the easement. (ii) An easement must accommodate the dominant land --- right must benefit the land, not just the owner e.g. Hill v Tupper  "exclusive right" only benefitted the owner, not the canal. Explained in Re Ellenborough Park that the easement should be for "normal use of the land", not "independent business enterprise".
* Also held in REP that in order for easement to accommodate dominant land, there must be some degree of physical proximity - issue is whether or not normal use of the land is enhanced, which must take into account the nature of the dominant land e.g. Moody v Steggles  where land had been a pub for as long as living memory - held to have an easement to keep a sign announcing and promoting the pub. (iii) D and S tenements must be different people --- affirmed in Parshall v Bryans - obviously problematic for property developers, who may wish to grant easements for the ease of communal spaces, thus the Law Comm have recommended that it should be possible. (iv) Right must be capable of being the subject of a grant --- capable of being granted by deed, must be a grantor/grantee, actually creates 4 more requirements for effective grant: a. Certainty in the scope of the grant --- must be clear what D is entitled to, nature and extent of burden. Held in Harris v De Pinna  no right to air/light/
view/TV signal (Hunter v Canary Wharf)/make a noise. Uncertain rights to 'wander' over ill-defined land is insufficient. b. No positive burden on S --- easement must not require servient owner to do anything e.g. held in Regis Property Co Ltd v Redman  law recognises a right to receive water through a pipe, but not to receive heated water since this would impose a burden. Right to use a neighbour's swimming pool in Moncreiff v Jameson  held not allowed as it would impose a burden on the servient to keep the pool filled with water. c. Limitations on new easements --- categories are never closed, but each time you must ask whether it is a genuine policy recommendation e.g. Lawrence v Fen Tigers  the SC recognised an easement to make noise could be acquired through prescription, but on the facts of that case, it had not been long enough. Court very reluctant to recognise new negative easements - Phipps v Pears . d. Ouster principle/no exclusive possession --- an easement cannot amount to exclusive possession of the land, Batchelor v Marlow. Held in London & Blenheim v Ladbroke  that it is essentially a question of degree, owner must be left with "reasonable use". Scottish court in Moncreiff v Jamieson  rejected "reasonable use" test and advocated granting exclusive use, but not controlling/possessing, saw no reason why owner could not grant away all of his car parking and still retain controlling use. English decision if Kettel v Bloomfeld  widened reasonable use considerably so that as long as owner can retain some, trivial use, it can be an easement (also car parking). Law Comm recommends abolition of ouster principle.
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