Easements
Definition
- A proprietary right
- Would pass through a successor in title
- Right to use the land you do not own for the benefit of land you do own
o You have to have a piece of land to tie the easement to
o Can’t have an easement as a personal or contractual benefit
- Can be legal or equitable
- An easement is granted
o The grantor gives the easement
o The grantee benefits from the easement
o The grantee is the dominant owner and has the dominant land
o The grantor is the servient owner and has the servient land
- Easements are very powerful and very durable, and unlike, restrictive covenants,
cannot be revoked or changed
- Land burdened or benefited by an easement will have an impact on its use and value
- Common easements: right to cross the land (as a shortcut), right to run pipes under
the land, right to park, right to light
Key case – Re Ellenborough Park (1956)
- Came up with the conditions that you have to establish to see whether the use is the
right kind of use to qualify as an easement
o Certain things can’t be an easement so the first thing to do is to establish
whether what is being done on the land is an action that qualifies as an
easement
- For the alleged right to be an easement, ALL of the following criteria must be
satisfied
1. There must be a dominant and servient tenement
2. The dominant and servient tenements must not be owned and occupied
by the same person
3. The right must accommodate (benefit) the dominant tenement
The use must make the land more useful, more valuable etc
Will you enjoy the benefit wherever you are, or can you only
enjoy it on the land
Tricky related to commercial easements
Hill v Tupper (1863)
o Landowner given exclusive right to use canal for
commercial boating. Claimant found out canal owner
had allowed other businesses to use the canal.
o Claimed that there was an easement
o Held that the right to run the pleasure boats was too
personal to the dominant tenement and insufficiently
related to the land itself.
Moody v Steggles (1879)
1
, o Advertising a pun on neighboring land was recognized
as an easement as this benefitted the pub that was
located on the dominant tenement.
Platt v Crouch (2003)
o The right to moor boats at a riverbank was capable of
subsisting as an easement for the benefit of a hotel
situated on the dominant tenenment.
o If the current owner moved away and a new owner
took over the hotel, he would still benefit from this
right so this amounts to an easement.
4. The right must be capable of forming the subject matter of a grant
There must be a capable grantee and grantor
Original easement must have been made between owners of
either the freehold or the lease
If it isn’t clear from the facts, say “assuming bla”
The right must be sufficiently definite
Easement’s benefit must be clear to everyone.
Eg: A view is not definite enough and the enjoyment of it too
personal
The right must be analogous to existing easements
The right must place no positive burden on the servient owner
The right must not totally exclude the servient owner
The use cannot be “too vague, too novel, too expensive or too excessive”
- Too novel – the law is very conservative. Must show that the suggested easement is
akin to something that has been permitted to be an easement in the past. Law is
very fearful of making the land too restricted, which might make it harder to sell and
decrease its value.
- Too expensive – same test as with restrictive covenants – if there is any indication
that the cost of facilitating the use would be too expensive for the grantor, then it
wouldn’t be able to be an easement. Might to alternatives to securing these uses,
but not through an easement.
- Too excessive – easements are for use, not possession! So if the use is too excessive,
it won’t be an easement.
Positive, negative easements & profit à prendre
- Positif
o Going onto your neighbors land and using it in some way
Pipes under land, shortcut
- Negative
o Not need to go onto neighboring land but you receive something from the
servient land
The right to wind (for people who have windmills for eg)
- Profit à prendre
o When you go onto servient land to collect natural produce
Fishing rights, right to collect wood, right to pick wildflowers
o Unlike an easement, need not be connected to a piece of land
2
Definition
- A proprietary right
- Would pass through a successor in title
- Right to use the land you do not own for the benefit of land you do own
o You have to have a piece of land to tie the easement to
o Can’t have an easement as a personal or contractual benefit
- Can be legal or equitable
- An easement is granted
o The grantor gives the easement
o The grantee benefits from the easement
o The grantee is the dominant owner and has the dominant land
o The grantor is the servient owner and has the servient land
- Easements are very powerful and very durable, and unlike, restrictive covenants,
cannot be revoked or changed
- Land burdened or benefited by an easement will have an impact on its use and value
- Common easements: right to cross the land (as a shortcut), right to run pipes under
the land, right to park, right to light
Key case – Re Ellenborough Park (1956)
- Came up with the conditions that you have to establish to see whether the use is the
right kind of use to qualify as an easement
o Certain things can’t be an easement so the first thing to do is to establish
whether what is being done on the land is an action that qualifies as an
easement
- For the alleged right to be an easement, ALL of the following criteria must be
satisfied
1. There must be a dominant and servient tenement
2. The dominant and servient tenements must not be owned and occupied
by the same person
3. The right must accommodate (benefit) the dominant tenement
The use must make the land more useful, more valuable etc
Will you enjoy the benefit wherever you are, or can you only
enjoy it on the land
Tricky related to commercial easements
Hill v Tupper (1863)
o Landowner given exclusive right to use canal for
commercial boating. Claimant found out canal owner
had allowed other businesses to use the canal.
o Claimed that there was an easement
o Held that the right to run the pleasure boats was too
personal to the dominant tenement and insufficiently
related to the land itself.
Moody v Steggles (1879)
1
, o Advertising a pun on neighboring land was recognized
as an easement as this benefitted the pub that was
located on the dominant tenement.
Platt v Crouch (2003)
o The right to moor boats at a riverbank was capable of
subsisting as an easement for the benefit of a hotel
situated on the dominant tenenment.
o If the current owner moved away and a new owner
took over the hotel, he would still benefit from this
right so this amounts to an easement.
4. The right must be capable of forming the subject matter of a grant
There must be a capable grantee and grantor
Original easement must have been made between owners of
either the freehold or the lease
If it isn’t clear from the facts, say “assuming bla”
The right must be sufficiently definite
Easement’s benefit must be clear to everyone.
Eg: A view is not definite enough and the enjoyment of it too
personal
The right must be analogous to existing easements
The right must place no positive burden on the servient owner
The right must not totally exclude the servient owner
The use cannot be “too vague, too novel, too expensive or too excessive”
- Too novel – the law is very conservative. Must show that the suggested easement is
akin to something that has been permitted to be an easement in the past. Law is
very fearful of making the land too restricted, which might make it harder to sell and
decrease its value.
- Too expensive – same test as with restrictive covenants – if there is any indication
that the cost of facilitating the use would be too expensive for the grantor, then it
wouldn’t be able to be an easement. Might to alternatives to securing these uses,
but not through an easement.
- Too excessive – easements are for use, not possession! So if the use is too excessive,
it won’t be an easement.
Positive, negative easements & profit à prendre
- Positif
o Going onto your neighbors land and using it in some way
Pipes under land, shortcut
- Negative
o Not need to go onto neighboring land but you receive something from the
servient land
The right to wind (for people who have windmills for eg)
- Profit à prendre
o When you go onto servient land to collect natural produce
Fishing rights, right to collect wood, right to pick wildflowers
o Unlike an easement, need not be connected to a piece of land
2
