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Law Notes Land Law Notes

What Can Be An Easement Notes

Updated What Can Be An Easement Notes

Land Law Notes

Land Law

Approximately 987 pages

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What can be an easement?


  • Easement = right to do something on another’s land

    • OR (in a few cases) right to prevent something being done on another’s land

    • E.g. Rights of way, rights of light, rights of support

      • And any other rights which have been properly created.


  • Re Ellenborough Park [1956]:

    • Evershed MR:

      • Four characteristics of an easement:

        • (1) there must be a dominant and a servient tenement:

        • (2) an easement must "accommodate" the dominant tenement:

        • (3) dominant and servient owners must be different persons, and

        • (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

  • One piece of land must be adversely affected by the right (the servient land)

    • 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

        • Because you would have not land that benefitted from the right

          • And it therefore wouldn’t be an easement

      • Smith: is considered trite law, but no conclusive reason for this requirement.

    • Need not identify dominant tenement in easement document

      • But is good practise to indentify it to prevent confusion.


  • Can’t just be a benefit to the people on the land

    • 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

        • Whereas easement for right of way across neighbour’s land to road benefits my land itself b/c makes access more convenient.

    • Re Ellenborough Park [1956]:

      • Evershed MR:

        • it is not sufficient to show that the right increased the value of the property conveyed,

          • unless it is also shown that it was connected with the normal enjoyment of that property

            • this is a question primarily of fact.

  • In business use

    • 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:

        • Fact that the easement in question benefits a business purpose does not automatically disqualify it from being granted.

        • Fact that the occupant only uses the house for the business which he pursues,

          • Means the easement is more or less connected with the mode in which the occupant uses the house and therefore should be granted.

    • Hill v Tupper [1863]: C negotiated with X that he would exclusive use of the canal for pleasure boats. D subsequently came along and also used the river for this purpose. C sued D.

      • Pollock B:

        • Can’t create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee.

          • This grant merely operates as a licence or covenant on the part of the grantors (X + C),

            • And gives C no right of action in his own name against any other party who infringes this right

    • McFarlane: C in Hill was attempting to use easements to craft exclusive business on another’s land unrelated to the use of his own land, whereas C in Moody was using land for purpose related to his own land – i.e. a business.

Different owners/occupiers of dominant and servient tenements

  • Person can’t have easement over own land

    • But isn’t fatal that same person holds fee simple in both plots

      • E.g. Landlord and tenant: tenant has easement over landlord’s adjoining land.

  • But if land falls into common ownership, all easements are extinguished and must be re-granted if land then falls into differing ownership again.

  • Scot Law Com:

    • Where two plots w/ easements fall into common ownership

      • Easements should not be extinguished

        • But should become “latent” until plots fall back into common ownership.

Right = “capable of grant”

  • A) Capable of clear definition

    • If a right in unspecific and vague, it can’t be an easement

      • E.g. Smith: might explain why “rights to view”, rights to privacy etc. have not been considered easements.

  • B) Imposes no positive obligation on servient owner

    • Positive obligations can be imposed by contract or covenant, but these won’t last with a new purchaser

      • Easements, which do last from purchase to purchase, cannot impose any positive obligation

    • Rance v Elvin [1985]: S conveyed land to C w/right of uninterrupted supply of water thru S’s pipes. S sold to M, M needed to pay via meter for supply of water to flow. M argued no easement b/c positive obligation to pay for water supply so could flow through pipes.

      • Browne Wilkinson LJ

        • C claiming a right to the uninterrupted passage of any water that may come into the pipes under M's land

          • NOT a right to a supply of water;

        • Thus M need only not take action to interrupt supply to avoid infringement – if supply fails not b/c of M, then M fine.

          • Thus, this imposes no positive obligation on M, only a negative obligation.

          • If the supply is cut off b/c M fails to pay, that’s not a problem.

        • However, C must pay his share of the costs of the water.

    • The exception

      • This is where there is a leasehold covenant with the leasehold being the dominant tenement – here positive obligations can run (Liverpool CC v Irwin)

  • C) No new negative easements

    • Positive Easements: Most easements allow Dom do something to Serv’s land or on Serv’s land

    • Negative Easements: Some rare easements stop Serv from actually doing certain activities on their land

      • E.g. right to light (stopping Serv from doing any activities which would block Dom’s light)

        • Court reluctant to grant any new negative easements however – you need to use restrictive covenants (which can’t pass by prescription so are virtually never implied)

    • Phipps v Pears [1956]: D pulled down house, lead to C’s house wall being exposed to weather, caused damage.

      • Lord Denning MR:

        • A right to protection from the weather (if it exists) is entirely negative.

          • It is a right to stop your neighbour pulling down his own house.

        • Law is very wary at creating...

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