An easement (e.g.) a right of way. Are rights one has over the land of another. Certain characteristics must be met for a right to be considered an easement. The case Ellenborough Park, Re [1956] ch 131 as laid out in Cheshire’s Modern Real Property 7th Edition states:

There Must Be A Dominant And A Servient Tenement: –

A tenement is any land held for a freehold or leasehold estate. It is a phrase commonly used in easement to refer to a piece of land. “An easement cannot exist in gross – i.e. without any estate in land to which the right is connected” (Land Registry: 2010). There must be two pieces of land. The dominant tenement which benefits from the easement and the servient which is affected by it, the need for a dominant and servient tenement was recently backed up in the case of London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993]. This case showed that there was no easement, as the dominant tenement could not be determined.

The Right Must Accommodate The Dominant Tenement: –

The right must be connected with use and must improve the usefulness or amenity. An easement must benefit the dominant tenement, this stipulation involves a number of factors:-

  • Benefit to land- The right must benefit the land and not the current occupier of the land. Usually if the right will increase the value of the land this will usually satisfy the condition of the easement.
  • Proximity of dominant and servient tenements- The dominant tenement does not have to be adjoining the servient tenement as long as it can derive benefit. For example, an owner of a farm may allow a horse rider of a local property access across his land for a charge providing certain criteria is met, this could be an easement.
  • Personal advantage not sufficient- If the right had been for personal advantage of the dominant owner then this condition is not satisfied, this is further backed up in the case of Hill v Tupper [1863].

Dominant And Servient Owners Must Be Different Persons: –

An easement is defined as a right one has over the land of another’s. This statement is correct however therefore means you cannot have an easement over your own land. This would be defined as a quasi-easement for example if a farm owner leases a piece of his land and at a latter date finds he need to cross the land, he could approach the tenant and the tenant could grant him an easement to cross his land.

As long as the dominant and servient tenements are not both owned and occupied by the same person then this criteria can be met.

A Right Over Land Cannot Amount To An Easement, Unless It Is Capable Of Forming The Subject Matter Of The Grant (The Right Must ‘Lie In Grant’): –

This characteristic has a few factors: –

There must be a capable grantor and grantee: – The servient owner must be fully able to grant an easement”. (Land Registry: 2010) for example, if the land has a mortgage on it this may limit the grantor’s power to make the grant. The dominant owner must also have the power to accept the grant.

The matter granted must be sufficiently definite. (Riddell: 2003) this is backed up in the case of Chaffe v Kingsley [2000], the claim of right of way was denied as it was not specific enough. A right to a view or a right to privacy have been considered too indefinite.

The right must be capable of existing as easements. A right to light is not defined to constitute an easement however a right to light through a specific window can be an easement, Colls v Home & Colonial Stores Ltd [1904]. A right to clean you windows whilst standing on a neighbouring property may also satisfy this requirement.

The Right Must Not Entail Expenditure By The Servient Owner: –

It is unlikely that to be accepted as an easement if the servient owner has incurred costs. An easement of fencing is an exception to this rule Rance v Elvin [1983].

The Right Must Be Against Other Land:-

An easement is a right over another’s land not a right to possession. A right cannot qualify as an easement if it amounts to exclusive possession. It would not hold in court if the right excluded the servient owner from the use of his own land. The right could be considered an easement even where charges are made for use or general upkeep, as found in the case of London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993].

Express Grant And Implied Grants

Express grant: – If S owns a nearby farm he may make an express grant to D, who owns the house next door an easement over his farm. Express words constitute the most common form of grant. If S decides to sell his land, an easement has been created. This is legal and the grant will be contained in the deed of transfer or in the lease. “A grant of an easement by express word is normally incorporated in a transfer of a freehold estate or a grant of a leasehold estate where it is intended that the new estate owner should enjoy certain rights of easement over the land retained by the transferor or lessor.” [Gray: 2007]. After 1925 an easement for an interest became equivalent to fee simple in absolute possession, the term is absolute. If an easement was equitable before 1926 then if someone purchased the land off the servient owner they would then be able to take possession free of the equitable easement which had existed between the dominant and servient owners. An easement cannot be set up for life it can only exist as an equitable easement.

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