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A more recent version of these What Can Be An Easement notes – written by Oxford students – is available here.
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What can be an easement?
Examples
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Easement = right to do something on another's land o OR (in a few cases) right to prevent something being done on another's land o E.g. Rights of way, rights of light, rights of support
? And any other rights which have been properly created. Requirements:
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Re Ellenborough Park [1956]: o Evershed MR:
? Four characteristics of an easement:
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(1) there must be a dominant and a servient tenement:
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(2) an easement must "accommodate" the dominant tenement:
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(3) dominant and servient owners must be different persons, and
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(4) a right over land cannot amount to an easement, unless it is capable of forming the subject-matter of a grant. Dominant and servient tenements
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One piece of land must be adversely affected by the right (the servient land) o The other piece of land must benefit from the right (the dominant land)
? Thus, you can't have a right to cross someone's land to reach a helicopter pad if you didn't own the helicopter pad
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Because you would have not land that benefitted from the right o And it therefore wouldn't be an easement
? Smith: is considered trite law, but no conclusive reason for this requirement. o Need not identify dominant tenement in easement document
? But is good practise to indentify it to prevent confusion. Accommodation
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Can't just be a benefit to the people on the land o Must actually benefit the land or the way the land is used itself.
? E.g. Easement for free Liverpool tickets benefits land owners but not land itself
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Whereas easement for right of way across neighbour's land to road benefits my land itself b/c makes access more convenient. o Re Ellenborough Park [1956]:
? Evershed MR:
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it is not sufficient to show that the right increased the value of the property conveyed, o unless it is also shown that it was connected with the normal enjoyment of that property
? this is a question primarily of fact.
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In business use o Moody v Steggles [1879]: For 50 years, a sign board had hung against D's house advertising C's public house. D attempted to remove the signboard.
? Fry J:
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