ASSIGNMENT

On

CHARACTERISTICS OF EASEMENTS AND THE WAYS

THESE EASEMENTS ARE CLASSIFIED

Presented
By

GROUP 7 MEMBERS

Course Code: PPL 324

Course Title: ELEMENT OF LAND LAW II

DEPARTMENT OF ESTATE MANAGEMENT

FACULTY OF ENVIRONMENTAL SCIENCES
UNIVERSITY OF LAGOS, AKOKA, LAGOS

LECTURER
Dr. ISSA ADEDOKUN

@ May, 2024

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 LIST OF GROUP 7 MEMBERS

1. GBAJOBI ESTHER OYINKANSOLA - 190502008

2. ELEGBA SAMUEL ENIOLA - 190502037
3. ADESANYA BOLUWATIFE - 190502018
4. OLATINWO OLAIDE ABIODUN - 190502043

ASSIGNMENT QUESTION
With the aid of Judicial and statutory authority, Discuss the
characteristics of easement and in what ways are easements
classified?

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 INTRODUCTION
Easement is a right attached to land which allows the owner of that land (dominant owner) to use
the land of another person (servient owner) in a particular manner (positive easement) or restrict
its user by that person to a particular extent (negative easement) but does not allow him to take
any part of its natural produce or its soil-Mannign V Walshdale, Okunzua V Amosun. The use
should be inclusive as the dominant owner cannot claim an exclusive or restrictive right to use
the servient land.
An easement is either a positive or negative right of use over land that is owned by another. By
positive, we mean a right that the right-holder is allowed to exercise on the land. By negative, we
mean a right that the right-holder has to prevent the other landowner from acting in a certain
manner over that land. The easement benefits the landowner and their land, the so-called
“dominant tenement.” The land over which the right is exercised (and there must be land to
exercise the right over) is called the “servient tenement.”

The main example of an easement is a right of way. This is a right that the owner of the
dominant tenement has to cross over or pass over the land owned by the servient tenement
landowner. For example, if A (the dominant tenement holder) has an easement of a right of way
over neighbouring land owned by B (the servient tenement holder), then we can say A is able to
e.g. walk across or drive across B’s land and B has no legal basis to stop A from doing so
provided that A exercises the right in accordance with the wording of the easement. Easements
now also include a right to park a given motor vehicle on the servient land, provided that it is
exercised in a manner which is civil and is exercised only to satisfy those needs which are
reasonably incidental to the enjoyment of the dominant tenement (Moncrieff v Jamieson [2007]
UKHL 42, in which the dominant tenement was practically inaccessible to reach without parking
a car on the servient land).

CHARACTERISTICS OF EASEMENT
As we have seen the definitions of easements which is a form of right of proprietary estoppel,
meaning they can act to prevent the servient landowner from restricting the rights accorded to the
owner of the dominant tenement in the exercise of that right.

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Given the power this accords to a party claiming to have a valid easement, the court has set out a
number of criteria that must be satisfied in order for an alleged easement to be valid.

1. There Must Be a Dominant and Servient Tenement;

The two portions of land, though separate, must (for easements) be adjacent and neighbouring to
each other, and must be two distinct parcels of land. We say that the benefit accrues to the
dominant land, and the servient land is burdened by the easement (London & Blenheim Estates
Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157). The reason there must be two distinct
parcels of land, each either having the benefit or the burden, is that the rights of easements are
“real” rather than “personal” relationships: the rights and liabilities apply to land, not persons. So
for example, a person does not acquire an easement to play at a golf club, because there is no
dominant land that pertains to the easement (Banstead Downs Golf Club v Customs and Excise
Commissioners [1974] VATTR 219, VAT Tr). This right is subject to the exception of statutory
easements.

2. The Easement Must ‘Accommodate’ The Dominant Tenement;

In order for the easement to be valid the right must confer a benefit on the dominant land, not
simply the person who owns the dominant land. This may seem an artificial distinction, because
land cannot be said, as a matter of common sense, to “enjoy” benefits accruing from easements.
Nevertheless, this aspect of the conditions for easements is that the land itself must be benefited,
not least because the right is passed to a transferee of the dominant land.

This requirement of accommodation also underlines the point about the land being neighbouring
or adjacent for easements: it is for example nonsensical to suggest there can be ‘a right of way
over land in Kent appurtenant to an estate in Northumberland’ (Bailey v Stephens (1862) 12
CBNS 91 per Byles J).

Key Points:
 There was a purported agreement alleging an entitlement of “exclusive” use for docking
boats in the canal.

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  Merely alleging this exclusivity did not warrant the creation of an easement with its
proprietary rights.
 The reasons for refusing to enforce the alleged easement were commercial (the
prevention of what would otherwise be a monopoly); the lack of a dominant tenement
(the land alleged to constitute as such was not directly benefited by the alleged
easement); and the alleged right was phrased too broadly.

Alongside this concern that the dominant tenement be accommodated by the easement, there has
been some controversy over whether the owner of the dominant tenement may also exercise the
rights granted to the dominant tenement over adjacent land owned by the owner of the dominant
land. For example, if A has the benefit of an easement over their land, Blackacre, A should also
have the benefit of that easement for the adjacent land also owned by A, Whiteacre.

There is some case law to suggest that the adjacent land (Whiteacre) may benefit from the
easement so long as its use is only ‘ancillary’ to the primary benefit which applies to Blackacre
(Massey v Boulden [2002] EWCA Civ 1634). However, this concept of ‘ancillary’ is rarely and
reluctantly applied by the courts (Das v Linden Mews Ltd [2002] EWCA Civ 590).

3. The Dominant and Servient Tenements Must be Owned by Different Persons;

Easements are rights that one person has over land owned by another person; therefore, it is
nonsensical to suggest a person has a right of an easement to the benefit and detriment of their
own land (Peckham v Ellison (2000) 79 P & CR 276, CA per Cazalet J). That being said, there
is a distinction between landlords and tenants. Therefore, tenants can acquire an easement over
the land to which they have a right of possession yet which is ultimately owned by their landlord.

4. Easements Must be Capable of Forming the Subject Matter of a Grant;

The right must be able to be put into a grant by deed. From this point, there are several sub-
requirements to comply with in order to satisfy this condition:

1. There must be a capable grantor and capable grantee: The persons who create the easement
must both be competent and capable of doing so. An easement can only be created by persons

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with the leasehold or freehold interests over the land, and no person can seek to create rights that
exceed their own proprietary interests (Wall v Collins [2007] EWCA Civ 444).
2. The right must be sufficiently definite: In order for a right to be capable of forming the subject
matter of a grant, the alleged easement must be clear in its ambit. Therefore, those rights which
are too broadly phrased or ill-defined cannot form the subject matter of a grant. We saw this in
Hill v Tupper (1863). There is therefore no easement which grants the alleged dominant
tenement owner the right to a good view (Hunter v Canary Wharf [1997] AC 655, HL). The
right to a good view may only be attained by way of a restrictive covenant that controls
construction activities.
Equally, the right to wander freely over another’s land is also too broad because it is said to
confer a merely personal benefit because it empowers the dominant tenement owner rather than
the dominant tenement (Attorney-General v Antrobus [1905] 2 Ch 188, ChD).
3. The right must be the kind of right normally granted by easements: Courts are reluctant to add
new categories of rights to easements (Hill v Tupper (1863), so if an alleged easement points to a
right that has not been hitherto recognized as an easement, the court is unlikely to establish it is
an easement, such as the alleged right to hit cricket balls into a neighbouring “servient” land
(Miller v Jackson [1977] QB 966, CA).
The courts are especially reluctant to implicate novel easements that are negative, meaning those
easements which refrain the servient tenement owner from doing something on their land
(Hunter v Canary Wharf [1997] per Lord Hope of Craighead). Therefore, an easement
requiring protection from the weather has been found to be illegitimate, because such an
easement would prohibit entirely lawful development on the “servient” land (Phipps v Pears
[1965] 1 QB 76, CA).
4. The right must not impose any positive burden on the servient tenement owner: An easement
will typically only require the servient tenement owner to allow the dominant tenement to
exercise the right enshrined in the easement without interference, such as the right for the
dominant tenement owner to park their vehicle on the servient tenement owner’s land. Following
on from this, unless the circumstances are exceptional, an easement cannot require the servient
owner to expend money, resources or time in any positive or onerous action (Liverpool County
Council v Irwin [1977] AC 239, HL per Lord Wilberforce). Therefore, no easement can be
created that requires the servient tenement owner to maintain a supply of water or electricity for

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example; but equally, the servient tenement owner may be required to not interfere with an
existing utilities supply (Duffy v Lamb (1997) 75 P & CR 364, CA).

5. The right cannot deprive the servient owner of all beneficial proprietorship: An easement
cannot displace the possessory rights claimed by a servient tenement owner; if a dominant
tenement owner intends to take possessory rights over the servient tenement land, they cannot do
so by way of an easement, but rather by freehold or leasehold ownership. Rights of easements
cannot unduly interfere with the servient owner’s ‘enjoyment of their own land’ (Moncrieff v
Jamieson [2007] per Lord Scott of Foscote). The more extensive and far-reaching an alleged
easement is, the less likely it is to be upheld by a court, especially where the alleged easement
purports to give the dominant tenement owner ‘exclusive and unrestricted use of a piece of land’
(Reilly v Booth (1890) 44 Ch D 12, CA per Lord Lopes CJ). It follows that an easement which
purports to allow the servient owner to access their land by invitation only from the dominant
tenement owner cannot be a valid easement (Hanina v Morland (2000) 97(47) LSG 41, CA).
This aspect of making the right capable of forming the subject matter of a grant has undergone
some formulation throughout case law. First, an easement would not be enforceable only if it
would ‘leave the servient owner without any reasonable use of his land’ (London & Blenheim
Estates v Ladbroke Retail Parks Ltd [1993]). Therefore, an easement would be lawful even if it
restricted yet did not entirely eliminate the servient owner’s reasonable use of the land.

Second, the courts have had some sympathy with this notion, as in Moncrieff v Jamieson [2007]
where Lord Scott of Foscote said there was no reason ‘why a landowner should not grant rights
of a servitudal [sic] character over his land to any extent that he wishes.’ The House of Lords
reasoned that an easement which partially excluded the servient owner would be permissible so
long as it did not preclude the servient owner’s ‘possession and control’ of their land. This
principle was reflected in an earlier case in which the court reasoned that a servient owner cannot
be left with ‘no more than a shadow of ownership and possession’ (Clos Farming Estates Pty
Ltd v Easton [2001] NSWSC 525).

Benefit to the Land, Not the Person:

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 The benefit provided by the easement must attach to the land itself and not to the individual
owner of the land. The principle set out in Moody v Steggles (1879) 12 Ch D 261
underscores that the easement must benefit the land directly.

Permanence and Continuity:

Easements are typically permanent and run with the land, meaning they continue to benefit
and burden the respective properties irrespective of changes in ownership.

Under the Law of Property Act 1925, section 62, easements can be implied to run with the
land, provided certain conditions are met.

EASEMENT DISTINGUISHED FROM SIMILAR RIGHTS.

Profit: This does not mean selling price minus cost price. Here profit is referred to as the
right to take the natural produce of another’s land or any part of the soil. Unlike easement, in
profit there is no need to own neighboring land and profit may be enjoyed in common with
the servient owner. Look at this scenario: Tunde (Tayo’s neighbor) usually goes to Tayo’s
land to pluck mango fruits from Tayo’s trees. This is NOT an easement but a profit. Why?
Because the mango is not benefiting Tunde’s land but conferring a personal advantage on
Tunde (the sweet taste and nutrients).

Licenses: easements are proprietary interest while licenses confer mere personal privilege or
permission to do an act which would otherwise have amounted to trespass –see Hill V
Tupper.

A license can be granted exclusively while this cannot be done under an easement. Unlike
easements, the creation of licenses do not require formalities in law. License does not require

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dominant land to be benefitted. Look at this scenario: Ayo is allowed to park his car on Ade’s
land. This is not an easement because it does not confer personal advantage on the land.

Restrictive covenants: although like easement, negative restrictive covenant can restrict the
servient owner’s use of his land. A restrictive covenant only exists in equity and cannot be
acquired by prescription but an easement can exist in law and can be acquired by
prescription.

Public rights: These are rights enjoyed by the public in general like right of way, right to
fish, and so on- see Amachree V Kallio. Why are public rights not an easement? Because it
does not require a dominant land servient tenement nor does it require the users to be
adjoining landowners

Key Points:
 The relevant portion of land was used almost exclusively by the person claiming to hold
the benefit of an easement.
 The right was deemed too far-reaching: it gave the purported dominant owner the ‘whole
beneficial user’ of that portion of land.
 Given the way in which the land was used (i.e. to permanently store vehicles as part of
the “dominant owner’s” business), the right so claimed amounted to ‘virtually a claim of
possession.’

CLASSIFICATION OF EASEMENT
Easements are the rights given to someone else to utilize part of a property for a specific purpose.
When most people think about easements, they picture the easement on their neighbor’s property
that lets them drive down their long driveway without encountering any traffic lights or stop
signs. However, the term can contain more complexity than that. There are multiple types of

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easements, and whether an easement exists on a property and what type it is could prove a
headache if you’re trying to buy or sell it.

Easements are often an important factor in the value of a property when buying or selling a
parcel of land. In some cases, they can even affect how you use your land. But because
easements aren't always well-documented and may not be clearly defined on title, they can cause
problems if you're not aware of them before you buy. If you’re considering buying a property
with an existing easement on it, it’s important to understand common types of easements and
how they work. This will help avoid any legal headaches later!

The Many Different Types of Easements

As you learn about the different types of easements that could exist on a property, keep in mind
that an easement can be more than one type. For instance, it could be both negative and private,
or prescriptive and affirmative.

Affirmative and Negative Easements

Most easements will fall under one of two categories: affirmative and negative easements. An
affirmative easement is an (often temporary) right of use granted to another person. For example,
you might have an affirmative easement for the people living in your neighborhood to make use
of your driveway. Or, if you’re building a fence on your property and run into a tree growing on
one side of the lot line, your neighbor could grant an affirmative easement so that the tree can be
removed and you can continue building in peace. An affirmative easement is sometimes also
referred to as a ‘non-possessory’ interest, because it doesn’t involve ownership of the property.

Conversely, while an affirmative easement grants a person or entity the right to do something on
a tract of land, a negative easement entitles the owner of the property in question to compel the
easement holder from engaging in a particular act on that land. In an example of both affirmative
and negative easements, in an Austin case where an easement holder owned the affirmative right
to operate aircraft over a property, the owner of that property held a negative obstruction
easement. This prohibited the easement holder from building structures that extended into
designated airspace.

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Appurtenant Easements vs Easements in Gross

Easements are also classified as either ‘appurtenant' or ‘in gross.’

If an easement is appurtenant, this means that the easement attaches to, or is part of, a tract of
land. These easements are said to “run with the land,” as they are part of the formal ownership of
the property.

An easement in gross, by contrast, is owned by a business or entity, and does not transfer with
the property when it’s purchased. Instead, it is an individual interest to use that land which
benefits a specific person or organization. A title search by a prospective owner of a property
would show an easement appurtenant, but not one in gross.

Express vs Implied
An express easement is affirmatively granted by the landowner through documented legal
means. An express easement is usually created by a deed, and is in writing. Its terms are dictated
by the language creating the easement, rather than by the actions of the parties involved.

However, even when no document or formal agreement has created an easement, an easement
might still be understood, or ‘implied,’ by a situation or circumstance. These types of easements
are generally applicable to parcels of land that were once a larger piece of land split into smaller
segments. To create an implied easement, three requirements must be fulfilled:

The easement must be necessary to the enjoyment of the of property in question

The land must be divided, so that the owner of a parcel is either selling and retaining part, or
dividing the property and selling pieces to different owners
The use claimed in the implied easement must have existed before the severance or sale

Prescriptive Easements
Related to the existence of express and implied easements is the prescriptive easement. A
prescriptive easement usually arises from a misunderstanding of property boundary lines that

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persists for an extended period of time. Courts recognize these easements because the individual
claiming them used the property for a long period of time (how long, exactly, depends on the
state), and relied on the use of the land. For example, if your neighbor uses your private gravel
road to reach a public road for ten years without you as the property owner attempting to stop
him, a court may grant him a prescriptive easement.

Private vs. Public Easements

Private easement agreements are negotiated between two private property owners to minimize
personal property concerns. This usually extends to issues such as someone running sewer lines
under their neighbor’s property, or installing a structure on their yard or home that may obstruct
another person’s view.

A public easement, as you may be able to guess, grants usage rights to the land to the public at
large, giving the right of use and enjoyment to the entire public or to a specific community. Once
granted, a public easement becomes appurtenant, or part of the land on which it is based.

Conservation Easements
This type of easement protects wildlife habitats and natural resources from being destroyed by
development or pollution with the intent of preserving them for future generations. Examples of
conservation easements include wetlands conservation efforts where developers must have
permits from the EPA before commencing construction on certain areas.

CONCLUSION
In conclusion, easements are a critical element of land law, providing specific rights to use
another's property in a manner that benefits the easement holder. The characteristics of
easements, as defined by judicial and statutory authority, include essential elements such as the
existence of a dominant and servient tenement, the benefit to the dominant tenement, diversity of
ownership, and the nature of the right being capable of forming the subject matter of a grant.
These characteristics ensure that easements serve their intended purpose without imposing undue
burdens on the servient landowner.

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Easements can be classified in various ways, reflecting their diverse applications and the specific
needs they address. They can be affirmative or negative, depending on whether they allow the
easement holder to perform an act on the servient land or prevent the servient landowner from
performing certain acts. Easements can also be appurtenant, benefiting a particular piece of land,
or in gross, benefiting an individual or entity without being tied to land ownership. Additionally,
easements can be created through express grant, implication, necessity, prescription, or statute,
each method reflecting different legal principles and requirements.

The robust body of judicial precedents and statutory provisions governing easements ensures
clarity and predictability in their application. Landmark cases, such as Re Ellenborough Park and
Wright v. Macadam, alongside statutory frameworks like the Law of Property Act 1925,
illustrate the judiciary's role in defining and refining the concept of easements. These authorities
provide a foundation for resolving disputes and guiding the creation, use, and termination of
easements.

Understanding the characteristics and classifications of easements is fundamental for legal

practitioners and property owners alike, as it helps navigate the complexities of land use and
property rights. The interplay between judicial decisions and statutory law continues to shape the
landscape of easements, ensuring they remain a vital tool in the management and enjoyment of
land.

By appreciating these nuances, stakeholders can better manage their rights and obligations,
contributing to more harmonious and efficient use of land resources.

REFERENCE
 Teacher, Law. (November 2018). Creation of Easements Land Law Lecture. Retrieved
from https://www.lawteacher.net/lectures/land-law/easements-profits/creation/?vref=1
 https://id.land/blog/the-different-types-of-easements-and-how-they-work-a
 https://isochukwu.com/2018/01/11/land-law-2-11-easements/
 Re Ellenborough Park [1956] Ch 131
 Bailey v Stephens (1862) 12 CB (NS) 91
 London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 1 WLR 70

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