Easements are a key right found within land law. A practicing solicitor or lawyer in the legal areas of land or property will encounter these at some point during their career. They are also a key area of assessment within an LLB degree at university.
📖 By the end of this article, you will be able to: 📖 • Identify, and distinguish between, easements and profits within land rights. • Cite key cases involving easements.
Introduction to easements
This section explains two key rights that are held by one party over land that belongs to another party.
What are easements?
Easements add value to land they benefit and can be found everywhere within the modern world. An example could be a house that requires a power cable to be laid across another house owned by a different party. Essentially, these are a right enjoyed by one party to a benefit from another’s land.
📖 Halsbury's Laws of England volume 14 define easements as: 📖 'An easement is a right annexed to land to utilize other land of different ownership in a particular manner (not involving the taking of any party of the natural produce of the land or of any part of its soil) or to prevent the owner of the other land from utilizing his land in a particular manner'.
As the definition states, the right is ‘annexed’, it is attached to the land, rather than being a personal right. This shows that the right is transferred with the land rather than the party. For example, a right of way across land stays in existence, even when the land is sold to a new owner. The definition is also shown in the rule ‘an easement cannot exist in gross’, in gross refers to a lack of annexation, attachment is therefore a strict requirement.
Easements can be positive or negative in nature. Positive refers to allowed actions such as a right of way. Negative refers to a right to stop the servient owner from being able to undertake an action. An example of a negative easement is if the dominant owner’s building relies on the on the servient party’s building for support, then the servient owner may not remove that building.
⚖️ Case: Re Ellenborough Park  3 All ER 667 ⚖️ This case sets out the four defining characteristics for an easement. 1. There must be a dominant and a servient tenement. 2. An easement must accommodate the dominant tenement. 3. Dominant and servient owners must be different persons. 4. A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
It is important to distinguish this right from profits, which can often be confused with easements when examining land rights.
What are profits compared to easements?
Profits, also referred to as ‘profits à prendre’ as their full name, are a separate land right. Profits refer to rights to take from another party’s land. This could be the right to take wood from another’s forests, or to pick fruit from their trees.
💡 Test 💡 Consider a residential terraced house. This house will probably share water pipes with other properties, so an easement of pipe laying will be needed. This could also be the case if the property shares a driveway, though be aware parking on public roads is different. Consider what other easements a terraced property may require.
Identifying an easement
As shown earlier in the case of Re Ellenborough Park , there are four characteristics that form an easement. If these four characteristics are identifiable, then it is clear an easement exists.
1. There must be a dominant and a servient tenement within an easement.
The term ‘tenement’ refers to the owner/party. As the easement is annexed to the land, the benefit will run with the land to the new owner, it will not run with the tenement. For example, a tenement moving to a new house on new land will not bring the right of way with them from the previous land.
📖 Terms 📖 A dominant owner is the owner of the land which benefits from the easement. (The dominant owner's land is reached by the right of way). A servient owner is the owner of the land that bears the burden of the easement. (The right of way is across land belonging to the servient owner).
2. The easement must accommodate the dominant tenement.
The claimed right must benefit the land itself and not the dominant tenement themselves. In essence, it must accommodate them, and not the other way round.
The case of Bailey v Stephens (1862) 12 CB (NS) 91 also highlights the requirement of proximity. The two parties must be near to each other, an easement cannot be granted in London for a dominant tenement in Lancashire as an example. The distance can vary by case, in Re Ellenborough Park the distance of 150 metres was accepted.
The easement must also benefit the dominant tenement, this includes rights for businesses and trade. This does not allow for business to be conducted on adjacent land not directly owned, however. For example, a right of way over a field may be granted that leads to a separately owned hotel, that hotel cannot utilise the field for business purposes such as setting up a marquee, however.
⚖️ Case: Platt v. Crouch  EWCA Civ 1110 ⚖️ The right for guests to moor their boats on adjacent land, not owned by the dominant tenement, was seen as an easement because it benefitted the hotel business. A right of way was also granted.
3. The dominant and servient owners must be different persons.
A person cannot have an easement over their own land.
This rule may not apply in leasehold estates. Tenants may have access to easements on a landlord’s estate, such as the right of way for a communal corridor of a shared residential property on land.
4. The easement must be capable of forming the subject matter of a grant.
When ownership of land is transferred, the deed will contain the easements that are annexed to that land. As such, any easements claimed must be able to be transferred, there are three requirements for this.
– There must be a capable grantor and capable grantee.
For an easement to be granted, there must exist somebody capable of granting. This could be the sole owner of the servient land.
There must also exist a party that is capable of receiving an easement.
These two parties must be clearly identifiable, they cannot be constantly changing. A town of people is not a suitable party as the inhabitants will change over time for example. Loose bodies of people can be granted customary rights to land, that are like easements, such as the right to use the beach recreationally.
⚖️ Case: Hunter v Canary Wharf Ltd  2 All ER 426 ⚖️ A claim was made against the owners of Canary Wharf that the buildings were blocking television signals to the claimant's houses. Lord Hoffman stated an easement could not be created to accommodate the right to receive television signal as it would be vague and uncertain as to the number and body of persons to benefit from it. The accommodation of this easement would also interfere with the use of the servient land to a greater degree than suitable.
– There must be certainty of description.
The right to be granted must be definite enough to be described and clearly identified within a deed.
Easements that are too vague are not valid, easements for naturally occurring events are also not required.
⚖️ Case: Palmer v Bowman  1 All ER 22 ⚖️ An easement for drainage was rejected. The application was made by the owner of land that was at a higher elevation than the adjacent land. As water naturally and inherently drained downwards through percolation, it was decided there was no need to create an easement expressly for drainage.
– The right must be generally recognised as an easement.
An easement cannot match already existing easements for the land in question.
Easements cannot require the servient owner to spend money. An example of this is if a right of way exists and becomes overgrown, then it is up to the dominant owner to trim the plants to enable its use.
The easement cannot amount to possession, the servient owner must still be able to use the land in question. An easement for right of way could not prevent the servient owner from being able to traverse the same area.
Providing these requirements are fulfilled, then an easement can exist.
Easements do not allow anything to be taken from the land and rely on the four characteristics from Re Ellenborough Park . They cannot exist in gross.
Profits à prendre allow the taking from land. They can exist in gross.
Our next article examines the different common types of easements. ➡️
OSCOLA reference this article: LawLessons, ‘Easements’ (LawLessons, 24th January 2022) <https://www.lawlessons.co.uk/easements> accessed 8th July 2022
Harvard reference this article: LawLessons. 2022. Easements. [online] Available at: <https://www.lawlessons.co.uk/easements> accessed 8th July 2022