Meaning of Easement

An easement is a right which the owner or occupier of certain land

possesses, as such, for the beneficial enjoyment of that land, to do and
continue to do something, or to prevent and continue to prevent
something being done, in or upon, or in respect of certain other land not
his own.

Kinds/ Types of Easement -

There are four types of easement Section. 5 of Easement Act deals with
the types of easement. It provides that the easements are either
continuous or discontinuous ,apparent or non apparent.

A) Continuous Easement -
A continuous easement is one whose enjoyment is, or may be, continual
without the act of man.

Illustration -

A right annexed to B’s house to receive light by the windows without

obstruction by his neighbor A. This is a continuous easement.
A continuous easement is extinguished when it is totally cease to be
enjoyed as such for an unbroken period of 20 years.

B) Discontinuous easement - A discontinuous easement is one that

needs the act of man for its enjoyment.

Illustration -
 A right of way annexed to A’s house over B’s land. This is a
discontinuous easement.

C) Apparent easement -

An apparent easement is one the existence of which is shown by some

permanent sign which, upon careful inspection by a competent person,
would be visible to him.

Illustration-

Rights annexed to A's land to lead water thither across B's land by an
aqueduct and to draw off water thence by a drain. The drain would be
discovered upon careful inspection by a person conversant with such
matters. These are apparent easements.

D) Non-apparent easement -

A non-apparent easement is one that has no such sign.

Illustration -
A right annexed to A's house to prevent B from building on his own
land. This is a non-apparent easement.

DEFINITIONS OF EASEMENTS AND profits à prendre

Before we examine both of these sections, we shall first give brief definitions
of the concepts of easements and profits à prendre, as this will help to
understand what is necessary to bring them about, and also how they are
distinct from one another.

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).

Profits à prendre, meanwhile, are to do with the right of one party (the
owner of the dominant tenement) to take part of the soil, minerals or natural
produce that is found on or in land owned by another party (the owner of the
servient tenement). This is a right that does not occur in easements. Further,
profits à prendre exist “in gross”, which means that the land which
comprises the dominant tenement need not be adjacent or neighbouring to
the land subject to the servient tenement, whereas with easements there is
a requirement for neighbouring or adjacent land.

Profits à prendre entitle the owner of the dominant tenement to take either a
part of the land itself (such as soil or sand) or take parts of things that grow
on or in the land (for example, timber or crops) or to take living creatures
that grow on or in the land or waters within the servient tenement. Water is
exceptional in that it cannot be owned (Alfred F Beckett Ltd v Lyons [1967]
Ch 449, CA).

CONDITIONS
Easements and profits à prendre, both these rights are a form 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.

Given the power this accords to a party claiming to have a valid easement or
profit à prendre, the court has set out a number of criteria that must be
satisfied in order for an alleged easement or profit à prendre to be valid.
They were set out by Danckwerts J in Re Ellenborough Park [1955] EWCA Civ
4 as follows:

1. There must be both a dominant tenement and a servient tenement,

2. An easement must ‘accommodate’ the dominant tenement,
3. The dominant and servient owners must be different persons, and
4. The right claimed must be capable of forming the subject matter of a
grant.

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/profit à prendre (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 and profits à prendre 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 (see below in

the section ‘Legal creation of easements and profits à prendre’).

2. The easement must ‘accommodate’ the dominant tenement

In order for the easement/profit à prendre 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 or
profits à prendre. Nevertheless, this aspect of the conditions for easements
and profits à prendre 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).

Case in focus: Hill v Tupper (1863) 2 H & C 121

A canal-owner leased a portion of the canal to Hill (H). The portion was on
the canal bank and the landing stage, and the canal-owner had purported to
grant H ‘a sole and exclusive’ right to dock pleasure boats on the canal. A
landlord of a nearby inn (T) later sought to put rival boats on the canal and
thereby interfere with Hill’s business. H claimed to have an exclusive
easement over the waterway.

The court refused to recognise the purported right as enforceable.

The court intended to prevent a proliferation of similar claims, and was
concerned that the right sought to be exercised by H was phrased too
broadly. Further, H was effectively seeking to amass a commercial monopoly
over the canal, and this monopoly in no way connected with the “ordinary
use of the [dominant] land.”

There was also no right which was appurtenant to the dominant tenement;
the landing-stage could not be considered as having been accommodated,
but instead was simply a means to a commercial end. The court thus held
that H was a mere licensee, which was therefore unenforceable against T.

Key Points:

 There was a purported agreement alleging an entitlement of

“exclusive” use for docking boats in the canal.
 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 and profits à prendre 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 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 recognised 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 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)..

Case in focus: Copeland v Greenhalf [1952] Ch 488, ChD

Greenhalf (G) had for 50 years used a portion of Copeland’s (C’s) land to
store motor vehicles as part of G’s repair business. G claimed the land could
be used by himself at all times via an easement. Upjohn J (as he then was)
held the right claimed was too extensive to constitute an easement, as G
was effectively claiming the ‘whole beneficial user’ of that strip of land. In
effect, G was claiming beneficial ownership of that land. Upjohn J observed
the right claimed by G was ‘virtually a claim to possession of the servient
tenement, if necessary to the exclusion of the owner.’ Upjohn J took the view
that G’s activities were more akin to adverse possession.

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.’

Examination Consideration: We have covered a whole range of elements

that pertain to the conditions for valid easements and - to an extent -
profits à prendre. We managed to isolate the conditions into four discrete
conditions. Can you recall what they are? And can you remember the case in
which these principles were enumerated?
PART TWO: MECHANICS
Grants and Reservations
Grants arise where B creates in favour of A an easement or profit à
prendre over the land owned by B. Where the right is an easement, A of
course must hold a portion of dominant land that is capable of deriving the
benefit of the easement.

Reservations meanwhile occur when the owner of the given land B disposes
of part of that land to A, on condition that B will be able to nevertheless
exercise an easement or profit over that disposed land. Thus the distinction
between the two rights is that grants apply to land that has at all relevant
times been owned by the servient tenement holder, whereas with
reservations the servient land is formerly owned by one party and then, at
the moment the land changes hands, the person who formerly owned the
land now holds an easement or profit over it.

Legal creation of easements and profits à prendre

Unlike with estate contracts, both easements and profits à prendre can be
created (and can therefore operate) at law. The creation and operation of
such rights at law requires the fulfilment of certain conditions:

1. Status of servient estate: The right must apply against a legal estate in the
land, such as a fee simple. If the right is created against an equitable estate,
the right invariably and inevitably is equitable only.
2. Duration: An easement or a profit à prendre has to be set out in a manner
that is similar to that found in freeholds and leaseholds, i.e. that the
entitlement has to be set out ‘for an interest equivalent to an estate in fee
simple absolute in possession or a term of years absolute’ (Law of Property
Act 1925, s.1(2)(a); Land Registration Act 2002, s.27(4) Schedule 2 paras 6(3)
and 7(1)(a)).

Given that both these types of rights can exist either “in fee simple absolute”
or for a “term of years absolute”, it follows that the rights of easement and
profits à prendre may exist for an unlimited and undefined period. What
should be noted is that if an easement or profit à prendre is created for an
indeterminate period other than in perpetuity, for example if it said to
subsist for life rather than indefinitely or for 100 years, then it will take effect
in equity only.

3. Mode of creation: In order for an easement or profit à prendre to exist at law

it must be created in one of four ways. It must either be created by deed, by
statute, by implication, or by prescription. The first three methods are
discussed further below. The method of prescription is addressed in the next
chapter on Prescription.
Modes of Creation
As mentioned in the above section, an easement or profit à prendre can be
rendered as a legal right so long as, inter alia, the easement or profit à
prendre is created in one of the approved methods. Prescription is one of
those methods but is not discussed here as it is addressed in full in the
chapter ‘Acquisition by Prescription.’

1. Deed: Any conveyance of a legal estate, which will either include a pre-
existing easement/profit à prendre or will introduce such a right, must be
contained in a deed in order to be valid. This is required by the Law of
Property Act 1925, which requires (at s.52(1)) that ‘all conveyances of land or
of any interest therein are void for the purpose of conveying or creating a
legal estate unless made by deed.’
2. Statute: Both easements and profits à prendre are capable of being created
by statute. Statute is especially useful for the creation of easements where
those rights are created for the benefit of public or private service utilities
companies as they maintain and administer supplies of gas, electricity and
water. Unlike the usual requirement, statutory easements do not require the
presence of an adjoining or neighbouring dominant tenement.
3. Implication: There are certain circumstances in which the granting of an
easement can be implied or inferred on the part of the transferee of land
(that is, the person receiving the transfer). A deed of transfer will incorporate
by implication all those rights which are granted, therefore because they are
part of the deed (see subsection (i) above) they must be legal rights. It
follows that the rights therefore become enforceable on the basis of the deed
transfer.

If the land is unregistered, the implied easement/profit à prendre is

enforceable automatically against any successors in title of the servient land.
If the land is registered, the easement/profit à prendre is an overriding
interest. The types of implied grant can overlap, nevertheless they all retain
a central principle: a grantor ‘may not derogate from his grant’, meaning the
person making the grant cannot set the terms of the grant to be such that
the terms undermine the very purpose of the grant. Implication here refers
exclusively to easements, and not to profits à prendre. However, a right
cannot be converted into an implied easement if the subject matter does not
satisfy the Re Ellenborough Park criteria (see under the section entitled
‘Conditions’).

Implication
There are four kinds of implied easements:

1. Easements of necessity: Such an easement exists where the owner of the

dominant tenement cannot possibly exercise their rights over the dominant
land without the presence of an easement. The threshold for such an
easement is high: even if an easement is reasonably necessary for the proper
enjoyment of the alleged dominant tenement, the court will not infer an
 easement of necessity (Adealon International Corporation Pty Ltd v Merton
LBC [2007] EWCA Civ 362).

The court has limited powers to create temporary rights that resemble an
easement. The Access to Neighbouring Land Act 1992 entitles the court to
make an ‘access order’ (as per s.1(1)-(2)): these orders entitle the recipient
of the order to access adjoining or neighbouring land in order to undertake
certain kinds of preservation works for property and buildings.

2. Easements of common intention: An easement may be implied in order to

give effect to a prior understanding of the parties. That said, ordinarily an
easement of common intention would also require that the easement be
necessary (Nickerson v Barraclough [1981] Ch 426, CA per Megarry V-C).

Case in focus: Wong v Beaumont Property Trust Ltd [1965] 1 QB 673

Wong (W) had purchased property to be used as a restaurant. Wong

covenanted to comply with all public health regulations, including the need
to prevent noxious odours and smells. Neither W nor his landlord, Beaumont
Property Trust Ltd (BPT) knew that the only means of complying with these
covenants was to install a certain air ventilation system, and that such
system would necessarily be in the upstairs of the property separately
owned by BPT. The Court of Appeal held that W was entitled to an easement
as it was necessary for him to comply with both the terms of the lease and
with all other covenants.

Key Points:

 The tenant had entered into a covenant for the restaurant (the dominant
land).
 The covenant required the installation and use of a certain kind of equipment.
 The equipment required that it run through separate property (the servient
land).
 As such, the parties had impliedly shared a common intention, because both
parties, in contracting for the lease, would have intended that the tenant be
able to comply with the covenants.

3. Quasi-easements (the Wheeldon v Burrows rule): The case of Wheeldon

v Burrows (1879) LR 12 Ch D 31 dictates that an easement can apply, from
which the grantor cannot derogate, on a subdivision of land. It entitles the
holder of the right to exercise the same rights over a given section of land as
those rights formerly exercised by the grantor over the same portion of land.
So-called ‘quasi-easements’ do not apply in profits à prendre.

There are several requirements for establishing the validity of a quasi-

easement:
  The right must have been enjoyed over prolonged and substantial periods of
time, and should have been discoverable on a careful inspection; this
criterion is known as the ‘continuous and apparent user’ (Hansford v Jago );
 The right must have been reasonably necessary for enjoyment of the alleged
dominant tenement (Wheeler v JJ Saunders Ltd [1995] 3 WLR 466); and
 Where the owner of the land had previously exercised the right now claimed
by the alleged dominant tenement owner, the right needs to have been
exercised prior to and up to the date of transfer.

A quasi-easement is advantageous to the owner of such a right for several

reasons:

 It enables the owner to exercise those rights which might otherwise be

precluded because they - the rights being exercised - would suggest
pretensions of ownership over the land.
 The kinds of rights that a quasi-easement provides for include rights of way,
support, and light, as well as those rights ‘enjoyed de facto during unity of
possession [which] would, had that unity not existed, have been easements’
(Nelson v Walker(1910) 10,CLR 560 (HC of Australia) per Isaacs J).
 The doctrine applies to both legal grants and those grants which only apply in
equity (Borman v Griffith [1930] 1 Ch 493).

4. Easements under the Law of Property Act 1925: The word-saving

provision of s.62 of the Law of Property Act 1925 is another means of
implying an easement or a profit à prendre. That section contains ‘general
words’ which, in the absence of any contrary statement or intention included
in a given conveyance, will be implied into that conveyance by operation of
law. The words enable the holders of existing easements and profits à
prendre to continue enjoying the benefit of those rights following
conveyance, as well as those ‘liberties, privileges… rights, and advantages’
which relate to the land being conveyed at the date of the conveyance (Kent
v Kavanagh [2006] EWCA Civ 162).

One of the significant implications of s.62 is that it carves out an easement

or profit à prendre from quasi-easements and even revocable privileges
which are subsisting at the time of the conveyance (Peckham v
Ellison (2000) per Cazalet J).

Section 62 tends to be engaged where there has been some ‘diversity of

ownership or occupation of the quasi-dominant and quasi-servient
tenements prior to the conveyance’ (Sovmots Investments Ltd v Secretary of
State for the Environment [1979] AC 144 per Lord Edmund-Davies). The
presence of two separate tenements is essential, and the absence of such is
likely to be fatal to an implication of s.62 (Long v Gowlett [1923] 2 Ch 177). If
separate occupation ceases and the parties commonly occupy the land, such
rights as granted under s.62 will be void (Payne v Inwood(1996) 74 P & CR
42). The exception to this is found in the following case, discussed in focus:
Case in focus: P & S Platt Ltd v Crouch [2003] EWCA Civ 1110

Crouch (C) and his wife transferred to P & S Platt Ltd (P&S) property owned
by the Crouches, namely hotel premises near the coast. C retained adjacent
land on which they had prior to the transfer allowed hotel guests to moor
their boats and go fishing. P&S had been granted the option to purchase the
adjacent land, but failed to do so and the grant expired. However, because
P&S took the hotel as a going concern, meaning they intended to carry on
running the hotel as a business, the Court of Appeal held that P&S had at the
time of the transfer of the hotel also acquired the adjacent land. The rights
exercised over the land, such as fishing and mooring boats, were part of the
‘continuous and apparent user’ which ‘appertained and were reputed to
appertain to and were enjoyed with the hotel.’

Key Points:

 An area of land was transferred by one party to another.

 The property on the given area of land was to be used for the same purpose,
i.e. running a hotel.
 The transferees of the land (P&S) had the option of purchasing adjacent land
separately but had failed to do so.
 Prior to the transfer, the adjacent land had been used for the exercise of
various rights, such as fishing.
 Because the rights exercised over that adjacent land had occurred
‘continuously and apparently’, and ‘appertained to’ and were ‘enjoyed with’
the purchased land, the purchasers were deemed to have a right of
easement over that adjacent land despite the failure to purchase it.

Examination Consideration: By merely examining the word count, you will

have discerned that the area of greatest interest in this Part is about how
easements and profits à prendre may be implied. Can you recall the different
types of implication? And what other methods of creating an easement or
profit à prendre are possible?

CREATION OF EASEMENTS: HANDS-ON EXAMPLES

The sections set out above discuss two concepts: the necessary conditions
for an easement, and the means by which an easement is created. This
section provides a series of problem questions that probe different areas of
the matters we have just been examining. The answers to the questions can
be found at the bottom of the page, however you are encouraged to attempt
to answer the questions first based on your own recall or notes of the topic
before looking at the answers.

There are essentially three steps to answering questions relating to

easements:
 1. The first is the need to identify that the right claimed is alleged to be (or may
be interpreted as) an easement or a profit à prendre. Depending on the
answer, you will able to determine which of the following questions apply
(recalling, for example, that profits à prendre do not require adjacent or
neighbouring land for the dominant tenement).
2. The second step is to ask whether the alleged easement or profit à
prendre satisfies the Re Ellenborough Park criteria. As a quick reminder,
those criteria are:
o There must be both a dominant and servient tenement,
o The easement must accommodate the dominant tenement,
o The dominant and servient tenements must be owned by different
persons, and
o The right claimed must be capable of forming the subject matter of a
grant.
3. The third step is to examine how the right has arisen. It may have arisen by
deed or by statute, and you should certainly be aware of these possibilities.
However, as you will likely only have one question (or at most two questions)
on easements in an exam, the problem question will likely be directed to
matters of implied easements. Therefore, if it is an implied easement, recall
the four kinds of implied easement:
o Easements of necessity,
o Easements of common intention,
o Quasi-easements as per Wheeldon v Burrows, and
o Easements as per s.62 of the Law of Property Act 1925.

Q1. Alan purchases the ground floor of a property owned by Business Plc. Business Plc retains
control of the floors above. Alan intends to open a restaurant in the newly-purchased portion of
the land, and in the course of doing so discovers that he needs to install a special air
conditioning unit as required by health and safety regulations. Alan had covenanted to comply
with all such regulations at the time of purchase. The air conditioning unit needs some of its
wiring to run through the floors owned by Business Plc.

Advise Alan.

Q2. Alan is also looking at setting up his utilities for the restaurant. He notes that Business Plc
already have the necessary piping and wiring for water, electricity, and gas for the floors of the
building still owned by Business Plc. He could get the utilities installed separately (i.e. without
needing access to the floors owned by Business Plc), nevertheless Alan asks Business Plc if they
will consider installing similar utilities connections on his behalf through their floors to his
restaurant, but Business Plc say it is not their responsibility.

Advise Alan.

Q3. Charlie enjoys the view of the lake from his property, Greenacre. Delia owns the
neighbouring plot of land. Delia informs Charlie that she has just received planning permission
to construct a new set of houses on her plot of land. When Charlie sees the plans, he realises the
houses will disrupt his view. He comes to you for advice, saying he’s sure a lawyer friend told
him that he can get an easement to prevent the construction.
Q4. Excavators Inc, based in Northampton are looking to mine new resources as part of their
business. They have learned that the water of a particular lake in Cornwall would be especially
profitable given its unique properties. They approach the equitable owner of the land on which
the lake sits, Francis, to ask if they may be given special permission to take the water from the
land.

Advise Francis.

A1. This is a revised version of the case of Wong v Beaumont Property Trust Ltd. In that case,
you will recall the court considered implying an easement of common intention: both the parties
were taken to have intended that Wong would be able to comply with the relevant regulations,
and in the course of such compliance, Wong had to have access to the parts of the land owned by
Beaumont. And as you will recall from that case, an easement was indeed implied.

A2. Unlike in Q1, the person with the alleged dominant tenement (Alan) is looking to require the
owners of the servient tenement (Business Plc) to actively do something to the servient land
rather than simply allow Alan to do something on their land. As you will recall, any easement
that requires the servient tenement owner to actively and positively expend time, resources and
money on an activity is not a valid easement (Liverpool County Council v Irwin). Therefore, any
such attempt at an easement would fail.

A3. Charlie is in this instance looking to acquire an easement of retaining a good view of the
lake. The problem for Charlie, as per Hunter v Canary Wharf, is that the right is too broad, too
ill-defined, and in any event does not belong to the class of rights which have classically been
defined as an easement. Charlie’s hopes for an easement would therefore fail.

A4. There are two clues in this question that the type of right claimed is a profit à prendre. First,
the locations suggest that the land would not be adjacent or neighbouring. Second, Excavators
Inc is looking to take a natural resource from the land. You should note these relevant
characteristics, while also noting that Excavators Inc cannot actually acquire a profit à
prendre for the water because water is a resource that cannot be the subject of a profit à
prendre as per Alfred F Beckett Ltd v Lyons.

Easement-Meaning & Essentials of

Easement
Meaning & Essentials of Easement-An easement is a non-possessory interest in
other’s land. The Indian easement act allows the person to use land that he does not
own. But there are some rules which you need to know that you cannot reside on
the land in the easement, which means if there is a road in the land of another
person then you cannot set your house on that road as that land is your easement
right. The easement right on that property means you can go free from that road or
path.
Meaning of easement
A person having the right to enjoy his property over the land of another person
for a specific purpose, that right is called easement right. The title of that
property remains continuous with the real owner of that property.
In simple words when we talk about the easement, it is the right of an owner or
possessor of the property to enjoy his property with the help of another person’s
property.

What is an Easement?
Section 4 of the easement act defines the easement as “it is a right where the
occupies or the owner of certain property or land possessed, as such, for the
enjoyment of his land, to do or continue to do something, or to prevent or
continually preventing something being done; in or upon the other land, not his
land is an [Easement].”
Example: A has the property at the roadside and B is his neighbour who has the
property beside the property of A. B has to go between the A”s property if he
wants to go for his work and come back to his house by that road. Now, it is the
[Easement] right of B to go by A’s property.
Terms used under easement
There are some legal terms which are used under the [Easement] which are as
follow:

Dominant heritage
The land or property for the enjoyment of which the right exists is known as
Dominant heritage.

Dominant owner
The person who holds the land or dominant heritage is called the dominant
owner.

Servient heritage
The property or land on which the liability is imposed is called the heritage.

Servient owner
The owner of the servient heritage is known as the servient owner and it is his
property where the right of a [Easement] will be used.

Read Also: Mortgage- Definition and Different Types of Mortgage

Essentials of easement
There are mainly four essentials of Easement.

Dominant and Servient Heritage

There should be two properties to enjoy the right of [Easement]. Because it is the
right exercised by one person in the property of another person that’s why both
dominant and servient heritage cannot be one.

Separate owners
There must be the two owners of the properties for the enjoyment of [Easement]
right. There will be no [Easement] if the property belongs to the same owner.

Beneficial enjoyment of property

There should be the enjoyment of the property. The dominant owner can enjoy
express or implied enjoyment.

Positive or negative
The right of the easement can be both ways ie, negative as well as positive. In
the positive [Easement], the dominant owner enjoys his right to do something but
in the negative right, the dominant owner prevents the servient owner to do
something.
Modes of Acquisition of Easements
The right of the [Easement] can be acquired in two ways:

 Express Grant
 Implied Circumstances
 Express Grant
The right of the [Easement] can be granted by the expressway such as the
[Easement] can be given by inserting the clause of [Easement] in the
agreement, contract or deed signed where the granter expressly clears that he
is giving the [Easement] right to the person.
 Implied circumstances
There are various ways to acquire the [Easement] from an implied circumstance
which are:
Easement of necessity
[Easement] of necessity is that where the person cannot use his land without
exercising his right of [Easement] from the property of another person.

Meaning of Easement & its Essentials

For example, A sells his land to B for agriculture the field. But the B is unable to
enjoy his right without exercising the right of [Easement] from Z’s property. it is
the [Easement] of necessity.

Quasi easement
This [Easement] arises when both sides of land are owned by a sole person.
Then the landowner sells one of the sides of his land. The person who will take
that side shall have the right to enjoy the [Easement] from the other side of that
property if needed.
Prescriptive easements
This [Easement] occurs when someone acquires easement over another’s
property for a specific purpose. It is different from [Easement] by necessity as the
person acquiring the [Easement] only uses the property for a specific period.

Duration of an Easement
Normally, if the [Easement] is not specifically defined in the agreement, then the
court can assume that it is given for an indefinite time. But if the right of
[Easement] is written under the agreement then it will end on the specific date
given under the agreement, though the person can ask to extend the duration of
the [Easement].

Does an easement allow someone to take produce

or natural resources from the land?
No. The right to take produce or resources in known as profit-a-
prendre.

For example, Net Lawman's grazing agreement is a profit-a-prendre

giving the right to take a crop of grass.

How does an easement come about?

An easement may be made expressly, by implication or by
prescription. These terms mean the following:

Express grant

An easement made by express grant is one that has been written

down (expressly stated), usually in a deed made at the time of sale
of the property.

It confers rights to someone (usually the seller) to access or use the

land.

For example, if one person requires a drain to be built to a new

house, and the only way of connecting it to the mains sewerage
system is by running pipes underneath a neighbour's land, the
neighbour may grant the right for this to happen.

It is usually the person who will benefit from the easement who pays
for the cost of preparing the deeds.

An easement can be for a fixed term, for example, while a new

house is being built.

Implied grant

An easement made by implied grant is one where the rights are

implied by law, and not specified in any deed. They usually arise
when a landowner sells his or her property. Implied grants are also
known as easements of necessity.

A common situation in which implied grants come about is that

where a parcel of land (for example, an agricultural field) adjoining
another is sold, and the only way to access the land that the seller
retains is from the part sold.

Prescription

If land has been used for long enough openly by a non-owner

without permission from the owner then a grant of easement may
be made that allows continued use in this way. The qualifying time
period during which the land must have been in continuous use is
20 years.
How can an easement be stopped?
In legal terms, an easement is extinguished when it is stopped or
comes to an end.

Easements are extinguished when:

 an Act of Parliament is made that terminates the rights.

 an expiration date stated in an express grant has passed.
 a new deed revokes the easement.
 both pieces of land concerned come into the ownership of the
same person.
 the easement has not been used for at least 20 years.

Someone cannot have an easement over land he or she owns.

Rights of way
A right of way is a common type of easement that allows the
general public to cross land using a marked footpath, bridleway or
byway.

Rights of way may exist for numerous reasons. Many public

footpaths have existed for a very long time, originally providing a
means to reach places of importance for local people who were not
the owner of the land. These tend to be prescriptive easements,
existing because the path has been used uninterrupted for at least
20 years.

Landowners and also give permissive access, by reaching a formal

agreement with a local council (recorded as an express grant), or
informally by publicising permitted access.

Can a right of way be closed?

The local highway authority has the power to close, permanently or
temporarily, or divert a route that is a right of way on public land.

Otherwise, rights of way on private land can only be extinguished in

the same way as other easement.
Disputes
Disputes over easements are common, and most are over rights of
way. Resolving a dispute out of court, for example through
negotiation (or any alternative dispute resolution method) with a
neighbour, is usually the most effective solution.

Disputes over public rights of way must be resolved with local

highway authority, which are understandably more complex.

In most situations, obtaining advice from a solicitor about whether

the right exists or not is preferable before confronting the other
side.

Other relevant law

Under the Access to Neighbouring Land Act 1992, a neighbour has
the right to gain access to your land in order to carry out essential
repairs to his or her own, provided he or she gives appropriate
notice. If you refuse access, then your neighbour can apply for a
court order to force you to give access.

The Party Walls Act 1996 also sets out rights when a neighbour is
building or changing a wall or fence along a boundary to your
property and hir or her own.