Easements
Definition
Easement – a right which allows someone else to use land which belongs to a person
in a defined way.
The use will always be limited.
It will always stop short of giving them exclusive possession in the way that a
lease does.
Use for a temporary period of time.
Most common example is a private right of way.
Creates a burden on land.
Examples of Easements
Right of way or access.
Air/water.
Light.
Support.
Park car.
Drainage.
Letter box.
Fix a sign.
Terminology
Easement – a limited right that one landowner may enjoy over the land of another.
Profit – gives a limited right to use, but never a right to possess.
Owner of the profit is allowed to take or extract something from the other
person’s land.
Dominant tenement – the land that has the benefit of the right/easement.
The land that has the advantage over the other.
Servient tenement – the land that is subject to the other land’s right.
Grant – giving another some of your easements.
Reservation – where someone reserves easements to themselves.
Four Characteristics of an Easement
To be capable of being an easement, the right must meet all four characteristics
from Re Ellenborough Park [1956]:
A small housing development that was built in 1855.
Consisted of a private park surrounded by houses.
The houses used the park.
The park was requisitioned for war use and compensation was only due to
the owners of the nearby houses if they could establish that they had
easements over the park.
Court of Appeal held that the rights the houses had originally been given over
the park, which they had in return for contributing to the cost of the upkeep
of it, did count as easements.
Four characteristics confirmed:
, There must be a dominant and servient tenement.
The right must accommodate the dominant tenement.
The dominant and servient tenement must not be owned and
occupied by the same person.
The easement must be capable of forming the subject matter of a
grant.
Must Be a Dominant and Servient Tenement
No easements ‘in gross’.
You can’t have an easement that exists independently of a piece of land.
An easement has to be attached to a piece of land.
Profits can exist ‘in gross’.
The two pieces of land must be identifiable at the time that the easement is
created.
Can’t draw off something which can be worked out later.
Right Must Accommodate the Dominant Tenement
It has to benefit the dominant land.
Has to benefit the use of the land itself.
It’s not just about conferring a personal advantage, it’s about actually benefiting the
land.
Hill v Tupper [1863].
The plaintiff had a lease of land which purported to give him an
exclusive right to hire out pleasure boats on a river.
When somebody else started hiring out boats, he sued them because
he said they were interfering with his easement.
He was unsuccessful because the court didn’t recognise any
sort of easement like that to rent out the pleasure boats.
The plaintiff just had a personal right that benefitted him, not
an easement that benefited the land.
The benefit can relate to a business, as long as it actually benefits the land.
Moody v Steggles [1879].
The court recognised an easement to have a sign advertising a pub
hanging on the side of a neighbour’s house.
The pub benefited because the neighbouring house extended out
further into the road than the pub.
The sign brought in business from the street, which benefited
the land.
The court recognised an easement to have a sign hanging on a
wall.
If the two pieces of land are too far away from each other, then it is difficult to say
that a right accommodates the dominant tenement.
, Sometimes, judges give odd examples of advantages and benefits that might be
enjoyable, but don’t actually benefit the lands they give.
Re Ellenborough Park [1956].
Judge gave an example of a house being sold with a right for free
visits to London Zoo, or visits to Lord’s Cricket Ground.
These things cannot be easements as they don’t actually
benefit the land.
Regency Villas Title Ltd v Diamond Resort (Europe) Ltd [2018].
Lord Briggs – “..it is not enough that the right is merely appurtenant
or annexed to the dominant tenement, if the enjoyment has nothing
to do with the normal use of it. Nor is it sufficient that the right in
question adds to the value of the dominant tenement. Thus for
example, a right granted to owners and occupiers of a house in
Kennington to have free access to the Oval Cricket ground on test
match days might be annexed to the ownership of that house, and
add significantly to its value. But it would have nothing to do with the
normal use of the property as a home”.
Historically, the courts have been very cautious and have not found rights that are
purely recreational to be easements.
Regency Villas Title Ltd v Diamond Resort (Europe) Ltd [2018].
Common law moved on from Professor Gray’s “no easements to have
fun”.
It is now possible to recognise recreational easements.
A country mansion in Kent was turned into timeshare
apartments and a country club about fourty years ago (now a
hotel).
o With a timeshare, you buy a right to use a property for
a set period of time each year (e.g. for holiday).
o The timeshare had been sold to over 700 people, and
they each owned at least one week a year until 2061.
When the property was developed, the top floors had
apartments, and the bottoms floors were made up of a
country club for the time-sharers, and any other paying
members of the public.
o Club included a restaurant, TV room, gym, and in the
grounds there was a golf course, a swimming pool,
tennis and squash courts, and formal gardens.
In 1981, the developers built more timeshares in another
property in the grounds.
o Purchasers were also given easements to use the
recreational facilities.
By 1981, the facilities also included an ice skating rink, roller
skating, softball, riding stables and a croquet lawn, with the
large amount of the open parkland.
Over the years, some of the facilities changed.
o Swimming pool replaced by an indoor pool.
o Now the property exists as a hotel.
Definition
Easement – a right which allows someone else to use land which belongs to a person
in a defined way.
The use will always be limited.
It will always stop short of giving them exclusive possession in the way that a
lease does.
Use for a temporary period of time.
Most common example is a private right of way.
Creates a burden on land.
Examples of Easements
Right of way or access.
Air/water.
Light.
Support.
Park car.
Drainage.
Letter box.
Fix a sign.
Terminology
Easement – a limited right that one landowner may enjoy over the land of another.
Profit – gives a limited right to use, but never a right to possess.
Owner of the profit is allowed to take or extract something from the other
person’s land.
Dominant tenement – the land that has the benefit of the right/easement.
The land that has the advantage over the other.
Servient tenement – the land that is subject to the other land’s right.
Grant – giving another some of your easements.
Reservation – where someone reserves easements to themselves.
Four Characteristics of an Easement
To be capable of being an easement, the right must meet all four characteristics
from Re Ellenborough Park [1956]:
A small housing development that was built in 1855.
Consisted of a private park surrounded by houses.
The houses used the park.
The park was requisitioned for war use and compensation was only due to
the owners of the nearby houses if they could establish that they had
easements over the park.
Court of Appeal held that the rights the houses had originally been given over
the park, which they had in return for contributing to the cost of the upkeep
of it, did count as easements.
Four characteristics confirmed:
, There must be a dominant and servient tenement.
The right must accommodate the dominant tenement.
The dominant and servient tenement must not be owned and
occupied by the same person.
The easement must be capable of forming the subject matter of a
grant.
Must Be a Dominant and Servient Tenement
No easements ‘in gross’.
You can’t have an easement that exists independently of a piece of land.
An easement has to be attached to a piece of land.
Profits can exist ‘in gross’.
The two pieces of land must be identifiable at the time that the easement is
created.
Can’t draw off something which can be worked out later.
Right Must Accommodate the Dominant Tenement
It has to benefit the dominant land.
Has to benefit the use of the land itself.
It’s not just about conferring a personal advantage, it’s about actually benefiting the
land.
Hill v Tupper [1863].
The plaintiff had a lease of land which purported to give him an
exclusive right to hire out pleasure boats on a river.
When somebody else started hiring out boats, he sued them because
he said they were interfering with his easement.
He was unsuccessful because the court didn’t recognise any
sort of easement like that to rent out the pleasure boats.
The plaintiff just had a personal right that benefitted him, not
an easement that benefited the land.
The benefit can relate to a business, as long as it actually benefits the land.
Moody v Steggles [1879].
The court recognised an easement to have a sign advertising a pub
hanging on the side of a neighbour’s house.
The pub benefited because the neighbouring house extended out
further into the road than the pub.
The sign brought in business from the street, which benefited
the land.
The court recognised an easement to have a sign hanging on a
wall.
If the two pieces of land are too far away from each other, then it is difficult to say
that a right accommodates the dominant tenement.
, Sometimes, judges give odd examples of advantages and benefits that might be
enjoyable, but don’t actually benefit the lands they give.
Re Ellenborough Park [1956].
Judge gave an example of a house being sold with a right for free
visits to London Zoo, or visits to Lord’s Cricket Ground.
These things cannot be easements as they don’t actually
benefit the land.
Regency Villas Title Ltd v Diamond Resort (Europe) Ltd [2018].
Lord Briggs – “..it is not enough that the right is merely appurtenant
or annexed to the dominant tenement, if the enjoyment has nothing
to do with the normal use of it. Nor is it sufficient that the right in
question adds to the value of the dominant tenement. Thus for
example, a right granted to owners and occupiers of a house in
Kennington to have free access to the Oval Cricket ground on test
match days might be annexed to the ownership of that house, and
add significantly to its value. But it would have nothing to do with the
normal use of the property as a home”.
Historically, the courts have been very cautious and have not found rights that are
purely recreational to be easements.
Regency Villas Title Ltd v Diamond Resort (Europe) Ltd [2018].
Common law moved on from Professor Gray’s “no easements to have
fun”.
It is now possible to recognise recreational easements.
A country mansion in Kent was turned into timeshare
apartments and a country club about fourty years ago (now a
hotel).
o With a timeshare, you buy a right to use a property for
a set period of time each year (e.g. for holiday).
o The timeshare had been sold to over 700 people, and
they each owned at least one week a year until 2061.
When the property was developed, the top floors had
apartments, and the bottoms floors were made up of a
country club for the time-sharers, and any other paying
members of the public.
o Club included a restaurant, TV room, gym, and in the
grounds there was a golf course, a swimming pool,
tennis and squash courts, and formal gardens.
In 1981, the developers built more timeshares in another
property in the grounds.
o Purchasers were also given easements to use the
recreational facilities.
By 1981, the facilities also included an ice skating rink, roller
skating, softball, riding stables and a croquet lawn, with the
large amount of the open parkland.
Over the years, some of the facilities changed.
o Swimming pool replaced by an indoor pool.
o Now the property exists as a hotel.
