Easements

This article discusses what an easement is, what it does and when it occurs. This is an example
of a subject which is taught in the GDL.
What an easement is:An Easement is a right either to do something, or to use something, over another persons land.
The right to light is an example (Kelk v. Pearson (1871) L.R. 6 Ch.App. 809, 811 among other
cases). In this case it was decided that a person had a right to the natural sunlight which comes
into their property. The affect of Kelk v Pearson is that generally speaking, a property owner
cannot build a structure which would block their neighbour's incoming flow of natural sunlight.
The right to light is already established as an acceptable easement. This means that someone
can use Kelk v Pearson to protect their right to light.
However, many easements only exist as a result of modern developments, they must be
established as being capable of being an easement. Once established, then people can use the
easement to protect their rights..
The key case which dictates what is capable of becoming an easement is the case of Re
Ellenborough Park. In this case, an estate owner owned an estate with a park attached. The
estate owner sold off the estate house by house. As each house was sold, the new home owner
would contribute to the upkeep of the park in exchange for the right to use the park whenever the
home owner wished. When a dispute arose as to whether the home owner had a right to use the
park or not, the Court's ruled that this was a legal easement which allowed the home owners to
use the park and prevent building works being carried out upon it.
The criteria for an easement?
Re: Ellenborough Park laid out certain ground rules for establishing a new easement:
1. There must be a dominant tenement and a servient tenement i.e. the right is enjoyed over
servient tenement for the benefit of the dominant tenement. A public right of way has only one
piece land, not two and so is not an easement. The two pieces of land must exist and be
identified before an easement can be granted (London and Blenheim Estates Ltd v Ladbroke
Retail Parks Ltd).
2. The two tenements must be owned by different people this is because an easement is a right
exercised over anothers land and cannot exist over ones own land (Roe v Siddons).
3. The easement must accommodate the dominant tenement - this means that it must be for the
benefit of.
4. The Easement must lie in grant i.e. must be capable of being granted by Deed. A Deed (and
as a result, an easement) therefore has the additional requirements of:

- The person granting and receiving the easement must be capable of doing so. The
person granting it must have mental capacity to do so and must own, or have the
right in the property which allows granting of the easement.
- Being specific and definable - the easement must be capable of strict definition, for
example, a private right of way can be drawn up. A view is a matter of taste and not
definable William Aldreds Case
Additional requirements:Some rights which would have passed these tests are: a right to light
(aforementioned), right of way (Borman v Griffith), right to drainage (Atwood v Bovis
Homes Ltd), right to air (Wong v Beaumont Property Trust Ltd), right to storage
(Wright v Macadam), parking (London and Blenheim Estates Ltd v Ladbroke Retail
Parks Ltd). However, parking can be tantamount to possession and might be more
of a right, rather than an easement.
Next: the easement must be justified in being granted. This is easiest if the right
being granted is similar to a right already in existence, ie if a public house wanted to
put up a sign they could point to Steggles v Moody. If a pre-existing case can be
pointed to, then the following must also be complied with:
* Must not exclude the owner this can be the case with parking and storage
claims, where the owner cannot use the space at all.
* It must be a right and not involve the co-operation of the servient tenement
owner.
* There can be no new negative easements (Phipps v Pears)
* The easement must not involve expenditure by the servient owner (Regis
Property Company Ltd v Redman).
Apart from these hoops an easement might be capable of being granted if all of the
above is satisfied.
Legal or equitable:An easement can be legal or equitable. This is an important point. If the easement
is legal, it can be overriding under the Law of Property Act 1925 s70(1)(a) ("LPA")
and therefore binding on a purchaser of the property. If the land is unregistered then
a notice must be put on the charges register in order for the easement to be binding
on the purchaser.
In short, when a person has an easement, the person will want know that the
easement will endure. Registration of the easement, or an overriding interest allows
for protection of the easement. In our earlier example of a right to drainage (Atwood
v Bovis Homes Ltd), the part who would derive the benefit of the easement (the use
of the drains) would want to protect their easement by registering it below, or would
claim it was an interest which overrides the purchasers rights.
How an easement is granted
So, now we know what we need for something to be capable of being an easement,
and we know that easements can take different forms and need protection in
differing way. We know if a potential right cannot satisfy Re: Ellenborough Park and
all of the other requirements, then there is no easement, and none will be granted.

But what if it is capable of being an easement? The next stage is to see if the easement
has actually been granted.
To be a legal easement (as per LPA s1(2)) it must last satisfy the following
requirements:
1. It must be granted for either a fixed term or forever.
2. Created by Deed (as per LPA s52(1)).
Acquisition by express grant
1. By deed - this usually happens on sale of part of a property. Any ambiguity will be
construed against the seller.
2. Through s62 of the LPA 1925 this is where a person has a licence to do
something, on grant of a new Lease, this is a conveyance in the meaning of LPA and
the licence is elevated into an easement. This happened in Wright v Macadam. This
interpretation has been recognised in LRA 2002 s27(7). Again, the land must be in
separate occupation (Sovmots)
Acquisition by implied grant this can happen in the following ways:
1. Easements of necessity this is only where the easement is absolutely needed, not
when it is just useful. This is basically therefore, only if the land is land locked. The
case here is Wong Steggles v Moody Beaumont.
2. Intended easements can be derived from common intention.
3. Easements under Wheeldon v Burrows this is where an owner of two pieces of
land sells the part which is burdened and retains the benefited land. The owner then
wants to claim an intended easement. To do so, the owner must have been using the
easement themselves at the time of sale, for the reasonable enjoyment of the land and
the right must be continuous and apparent. (If it was used by the owner and/or for
reasonable enjoyment and is continuous, this appears to be enough). The right must
simply be for enjoyment, but not in J.J. Saunders v Wheeler a second right of access
was not held to be enough.
Note: diversity of occupation is required by s62, but not by Wheeldon v Burrows.
Whereas in Wheeldon v Burrows are restricted by the 3 requirements s62 is not. S62 is
limited to conveyances, whereas Wheeldon v Burrows could operate on the grant of a
Lease.
Acquisition by prescription this is where an easement is gained through long usage.
This is governed by the rule laid out as nec vi, nec clam, nec precario the right must
have been used not by force, not with permission and not by stealth.
So, in summary:
1. Check if a similar easement already exists. If not, go through Re: Ellenborough Park;
2. Check that the additional rights are satisfied (not negative etc);
3. Check if the right has been acquired legally or equitably;
4. Make sure that the easement has been registered.
Well done, now you should have a basic grasp of easements.
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