Learning Outcomes
This article outlines the fundamental requirements for a right over land to be recognised as an easement. For the SQE1 assessments, you must be able to identify the four essential characteristics of an easement as established in case law. Understanding these characteristics will enable you to determine whether a claimed right constitutes a valid easement and apply this knowledge to SQE1-style single best answer multiple-choice questions involving property rights scenarios.
SQE1 Syllabus
For SQE1, a thorough understanding of the nature of easements is required. You need to be able to apply the criteria that define an easement to practical situations. This involves analysing factual scenarios to determine if a right benefits a dominant tenement, burdens a servient tenement, and meets the other essential tests.
As you revise this topic, focus on:
- The requirement for both a dominant and a servient tenement.
- How an easement must 'accommodate' the dominant tenement.
- The necessity for separate ownership or occupation of the dominant and servient tenements.
- The criteria determining if a right is 'capable of forming the subject matter of a grant'.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which case established the four essential characteristics of an easement?
- Street v Mountford
- Tulk v Moxhay
- Re Ellenborough Park
- Wheeldon v Burrows
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A right can qualify as an easement only if:
- It is granted for a period exceeding 21 years.
- It benefits the owner of the dominant tenement personally, regardless of land ownership.
- The dominant and servient tenements are owned and occupied by the same person.
- It benefits the dominant tenement itself.
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Which of the following is LEAST likely to be capable of forming the subject matter of a grant as an easement?
- A right of way across a defined path.
- A right to receive light through a specific window.
- A right to a good view from the dominant tenement.
- A right to run pipes under the servient land.
Introduction
Easements are proprietary rights that one landowner can exercise over the land of another. Unlike a licence, which is merely personal permission, an easement attaches to the land itself and can bind future owners. For a right to be recognised as a valid easement, it must satisfy four essential characteristics laid down in the case of Re Ellenborough Park [1956] Ch 131. This article examines each of these characteristics, which are key for determining the enforceability of such rights in property law scenarios encountered in SQE1.
The Four Essential Characteristics of an Easement
The criteria established in Re Ellenborough Park provide the framework for identifying whether a right over land can qualify as an easement. All four conditions must be met.
1. There Must Be a Dominant and a Servient Tenement
An easement cannot exist independently ('in gross'); it must be linked to land.
Key Term: Dominant Tenement The parcel of land that benefits from the easement.
Key Term: Servient Tenement The parcel of land that is burdened by the easement (i.e., over which the right is exercised).
Both tenements must be identifiable at the time the easement is created. This requirement ensures that the right benefits a specific piece of land and burdens another specific piece of land, maintaining the connection to property ownership essential for proprietary rights.
Worked Example 1.1
Anya owns Plot A and grants her neighbour, Ben, who owns the adjacent Plot B, the right to walk across a path on Plot A to reach the main road. Which plot is the dominant tenement and which is the servient tenement?
Answer: Plot B is the dominant tenement because it benefits from the right of way. Plot A is the servient tenement because it is burdened by the right of way being exercised over it.
2. The Easement Must Accommodate the Dominant Tenement
The right must benefit the dominant tenement itself, rather than just conferring a personal advantage on the current owner. The easement must be connected with the normal use and enjoyment of the dominant land.
Key Term: Accommodation The requirement that an easement must benefit the dominant land itself, enhancing its use or value, and not merely provide a personal advantage to the landowner.
Factors considered include:
- Proximity: The dominant and servient tenements usually need to be reasonably close to each other, although not necessarily adjacent. A right of way over land in London cannot accommodate land in Manchester.
- Nature of the Right: The right must relate to the use, value, or mode of occupation of the dominant land. A right benefiting a business carried on the dominant land can qualify (e.g., a right to affix a pub sign to neighbouring property, as in Moody v Steggles), but a right conferring a purely personal or commercial advantage unrelated to the land itself will not (e.g., an exclusive right to put pleasure boats on a canal, as in Hill v Tupper).
- Recreational Use: Purely recreational rights were traditionally difficult to establish as easements. However, the Supreme Court in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] confirmed that rights to use sporting and recreational facilities (like swimming pools or tennis courts) can accommodate dominant land used for timeshares, reflecting modern concepts of land utility.
3. Dominant and Servient Tenements Must Be Owned or Occupied by Different Persons
A person cannot have an easement over their own land. The dominant and servient tenements must be in separate ownership or, at the very least, separate occupation. If the ownership and occupation of both tenements come into the hands of the same person, the easement is extinguished.
Revision Tip
Remember that a landlord can grant an easement over their retained land for the benefit of their tenant's leased land (and vice versa). Although the landlord owns the freehold of both, the occupation is diverse.
4. The Right Must Be Capable of Forming the Subject Matter of a Grant
This requirement means the right must be sufficiently definite and capable of being granted by deed, even if created informally (e.g., by implication or prescription). This involves several sub-criteria:
- Capable Grantor and Grantee: There must be legally competent parties capable of granting and receiving the easement.
- Sufficient Certainty: The nature and extent of the right must be clear and definable. Vague rights, such as a right to a good view (Re Aldred's Case) or a general right to wander at will (ius spatiandi, though see Re Ellenborough Park for exceptions related to defined areas like gardens), are typically not allowed. A right to light must relate to a defined aperture (e.g., a window). A right to air must be through a defined channel (Wong v Beaumont).
- No Positive Burden on Servient Owner: Generally, an easement must not require the servient owner to spend money or take positive action, beyond mere passive sufferance (e.g., allowing passage). Exceptions are rare (e.g., the anomalous easement of fencing in Crow v Wood).
- Not Amounting to Exclusive Possession (Ouster Principle): The right must not be so extensive as to amount to joint occupation or substantially deprive the servient owner of possession or control over their land. This is particularly relevant for rights of storage or parking. Cases like Copeland v Greenhalf (claim to store vehicles failed as too extensive) contrast with Wright v Macadam (right to store coal in shed allowed). For parking, the courts assess whether the servient owner retains reasonable use or control (Batchelor v Marlow vs Moncrieff v Jamieson). The outcome depends heavily on the facts and degree of interference.
- Within the General Nature of Rights Recognised as Easements: Courts are cautious about recognising entirely new types of easements, especially negative easements (which restrict the servient owner's use of their own land), as these can unduly hinder development (Hunter v Canary Wharf – no easement for TV reception). The recognised categories of negative easements (light, air, support) are generally considered closed. However, new positive easements may be recognised if they meet the essential criteria (Regency Villas).
Exam Warning
Be careful not to confuse easements with licences (personal permissions) or profits à prendre (rights to take something natural from another's land). Only rights satisfying all four Re Ellenborough Park criteria can be easements.
Worked Example 1.2
Leo owns a large field behind Maria’s house. Maria grants Leo permission orally to store his tractor in her large, unused barn when he is not using it. Leo has done this regularly for two years. Maria now wants to use the barn herself and tells Leo he can no longer store the tractor there. Leo claims he has an easement of storage. Does Leo have a valid easement?
Answer: It is unlikely Leo has an easement. While a right of storage can exist as an easement (Wright v Macadam), several issues arise here. First, the right was granted orally, lacking the formality required for an express legal easement (a deed). It might potentially be an equitable easement if there was a specifically enforceable written contract, which is absent. Second, the right might be too extensive if storing the tractor effectively prevents Maria from using her barn (the ouster principle). Third, Leo’s use was based on Maria’s permission, which suggests a licence rather than a right exercised 'as of right', which is necessary for prescription (though the 20-year period is not met anyway). Leo likely only had a bare licence, which Maria can revoke.
Key Point Checklist
This article has covered the following key knowledge points:
- An easement is a proprietary right enjoyed by a dominant tenement over a servient tenement.
- The four essential characteristics identified in Re Ellenborough Park must be present for a right to be an easement:
- There must be a dominant and a servient tenement.
- The easement must accommodate the dominant tenement (benefit the land).
- The dominant and servient tenements must be owned or occupied by different persons.
- The right must be capable of forming the subject matter of a grant (be sufficiently certain, not impose positive burdens, not amount to ouster).
- Understanding these characteristics is important for distinguishing easements from personal licences.
- The right claimed must relate to the land itself and not be purely for personal benefit.
- New types of positive easements may be recognised, but courts are reluctant to accept new negative easements.
Key Terms and Concepts
- Dominant Tenement
- Servient Tenement
- Accommodation
