Easements: Rights, Types, Creation and Termination

Introduction

An easement is a property right to use another person’s land for a specific, limited purpose, such as a right of way or a right to light. It is not ownership, and it is not a mere licence. The right attaches to land: the land that benefits is the dominant tenement, and the land that is burdened is the servient tenement. In England and Wales, the classic test in Re Ellenborough Park sets out when a right amounts to an easement.

Easements are common in conveyancing and development. They affect access, services, building works, and property value. Getting the creation, scope, registration, and enforcement right helps avoid disputes and costly constraints later.

What You'll Learn

• The Re Ellenborough Park criteria for a valid easement
• The main types: rights of way, light, support, drainage/water, parking and recreational rights
• How easements are created: express grant/reservation, implication (necessity, common intention, Wheeldon v Burrows, section 62 LPA 1925) and prescription
• Registration and priority rules under the Land Registration Act 2002, including when rights override
• How scope and “ouster” limits work, with key cases on parking and intensification
• Common dispute themes: obstruction, interference, repair, and excessive use
• How easements end: release, merger, abandonment, and change of circumstances

Core Concepts

The Re Ellenborough Park Criteria

Re Ellenborough Park [1956] Ch 131 sets out four requirements:

1. There must be a dominant and a servient tenement.
2. The right must accommodate (benefit) the dominant land, not merely a business conducted on it. Hill v Tupper (1863).
3. The dominant and servient tenements must be owned (and usually occupied) by different persons.
4. The right must be capable of grant: it must be sufficiently definite, within the general nature of an easement, and must not give exclusive possession nor amount to joint occupation with the servient owner. Reilly v Booth (1890).

Key points:

• Easements attach to land and generally pass to successors on transfer of the dominant land.
• Purely personal rights do not qualify, but the courts now accept certain recreational rights as easements: Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57.

Common Types of Easements

• Right of way: A right to pass and repass over defined land, on foot or by vehicle. Implied rights may arise where required for reasonable enjoyment (Borman v Griffith [1930]) or, in strict cases, for necessity (Adealon International Corp Pty Ltd v Merton LBC [2007]).
• Right to light: A right to receive light through defined apertures, commonly acquired by long use under the Prescription Act 1832. Colls v Home & Colonial Stores [1904] AC 179 sets the threshold for actionable interference (substantial diminution).
• Right of support: Land has a natural right to support from adjoining land. Support for buildings can arise by grant or prescription after long use: Dalton v Angus (1881) 6 App Cas 740.
• Drainage and water: Rights to the flow of water in defined channels or pipes, or to draw water, can be easements. Rance v Elvin (1985) 54 P & CR 9 confirms the validity of a right to an uninterrupted supply through existing pipes.
• Parking and access to facilities: Parking can be a valid easement if it does not amount to exclusive possession of the servient land. Batchelor v Marlow [2001] EWCA Civ 1051 and Moncrieff v Jamieson [2007] UKHL 42 are key. Recreational facilities can qualify: Regency Villas [2018].

How Easements Are Created

1. Express grant or reservation

• Must be by deed (s52 Law of Property Act 1925).
• In registered land, an expressly created legal easement requires registration to take effect at law (s27(2)(d) Land Registration Act 2002). If not registered, it usually takes effect in equity and needs a notice on the register to bind buyers.

1. Implied grant or reservation

• Necessity: A right is implied only if the land cannot be used at all without it at the time of the grant. Nickerson v Barraclough [1981] Ch 426 confirms this is a matter of presumed intention, not public policy. Adealon [2007] shows that if some other access exists, even if inconvenient or costly, necessity fails.
• Common intention: Where both parties intended the land to be used in a particular way that requires the right. Wong v Beaumont Property Trust Ltd [1965] 1 QB 173 (ventilation duct to run a restaurant); Pwllbach Colliery v Woodman [1915] AC 634.
• Wheeldon v Burrows (1879) 12 Ch D 31: On a sale of part, the buyer takes all quasi‑easements that are continuous and apparent and necessary for reasonable enjoyment of the part sold. This operates on grants, not reservations.
• Section 62 LPA 1925: General words can convert licences and privileges into full easements on conveyance if the rights were enjoyed at the time. Wright v Macadam [1949] 2 KB 744. P & S Platt Ltd v Crouch [2003] EWCA Civ 1110 and Wood v Waddington [2015] EWCA Civ 538 show s62 can operate even without prior diversity of occupation where rights are continuous and apparent.

1. Prescription (long use)

• Usually proved via the “lost modern grant” fiction: long, open, and peaceable use as of right (without force, secrecy, or permission) for at least 20 years. Smith v Brudenell‑Bruce [2002] 2 P & CR 5.
• If use began with permission, prescription fails unless permission ceased. Diment v NH Foot Ltd [1974] 1 WLR 1427.

Registration and Priority in Registered Land

• Express legal easements must be completed by registration to operate at law (LRA 2002, s27(2)(d)). They appear on the servient title’s Charges Register.
• Unregistered legal easements can bind a buyer as overriding interests under Schedule 3, paragraph 3 LRA 2002 if they are:
  • obvious on a reasonably careful inspection, or
  • within the buyer’s actual knowledge, or
  • exercised within the year before the disposition.
• Equitable easements should be protected by a notice on the register. Relying on actual occupation is risky; using a right of way is not “occupation”. Chaudhary v Yavuz [2011] EWCA Civ 1314.
• Overreaching does not apply to easements; it concerns beneficial interests under trusts.

Scope, Interference and Ouster

• Scope and intensification: Use must stay within the terms of the grant and within what was contemplated at creation. Intensification after redevelopment can invalidate continued use if it substantially increases the burden: McAdams Homes Ltd v Robinson [2004] EWCA Civ 214.
• Ancillary rights: Reasonably necessary ancillary uses are allowed to make the grant effective. Gore v Naheed [2017] EWCA Civ 369 allowed vehicles to use a right of way to access a garage associated with the dominant land.
• Interference: The servient owner must not substantially interfere with the right; equally, the dominant owner must exercise the right reasonably. Thorpe v Brumfitt (1873) LR 8 Ch App 650. For rights to light, Colls [1904] sets the substantial interference test.
• Ouster and parking: An easement cannot amount to exclusive possession of the servient land. Copeland v Greenhalf [1952] Ch 488 (storage of large numbers of vehicles went too far). Batchelor v Marlow set a “reasonable use” test; Moncrieff v Jamieson emphasised whether the servient owner retains possession and control. English courts recognise parking easements in suitable cases: Kettel v Bloomfold [2012] EWHC 1422 (Ch).
• Repair: The dominant owner may carry out reasonable repairs necessary to enjoy the right, but not improvements that increase the burden. Mills v Silver [1991] Ch 271.

Key Examples or Case Studies

Re Ellenborough Park [1956] Ch 131

• Context: Rights to use a communal garden.
• Held: Confirmed the four criteria for a valid easement.
• Practice point: Test the right against all four limbs before assuming it runs with the land.

Hill v Tupper (1863) 2 H & C 121

• Context: Exclusive right to put boats on a canal for commercial hire.
• Held: A business advantage unconnected to the normal enjoyment of land is not an easement.
• Practice point: The right must benefit the land itself, not just a trade.

Wheeldon v Burrows (1879) and Section 62 LPA 1925

• Context: Implied easements on sale of part and conversion of privileges into easements on conveyance.
• Held: Wheeldon passes continuous and apparent quasi‑easements necessary for reasonable enjoyment; s62 can convert pre‑existing uses into easements on conveyance (Wright v Macadam), including without prior diversity in suitable cases (P & S Platt; Wood v Waddington).
• Practice point: Check for visible features and established uses on split sites; wording and prior use can be decisive.

Nickerson v Barraclough [1981] and Adealon v Merton [2007]

• Context: Rights of way by necessity.
• Held: Necessity is based on presumed intention; it is strict. If any other access exists, even if inconvenient, the claim usually fails.
• Practice point: For landlocked plots, try to negotiate a deed; only rare cases qualify for an implied right.

Wong v Beaumont Property Trust Ltd [1965]

• Context: Lease to run a restaurant required ventilation works.
• Held: Easement implied by common intention to make the lease effective.
• Practice point: If both parties plainly intended a specific use that needs a right, the court may imply it.

Chaudhary v Yavuz [2011] EWCA Civ 1314

• Context: Equitable right of way over a metal staircase without registration.
• Held: Actual occupation did not protect the equitable easement; use of a route is not occupation.
• Practice point: Protect equitable easements with a notice; do not rely on occupation.

Regency Villas Title Ltd v Diamond Resorts [2018] UKSC 57

• Context: Timeshare owners claimed rights to use leisure facilities.
• Held: Purely recreational rights can be easements if sufficiently defined and connected to the enjoyment of the dominant land.
• Practice point: Modern amenities can qualify, provided exclusivity and vagueness issues are avoided.

Parking and Ouster: Copeland; Batchelor; Moncrieff; Kettel

• Context: Whether parking rights can be easements.
• Held: Excessive control defeats an easement (Copeland; Batchelor). Moncrieff suggests a focus on whether the servient owner keeps possession and control. English cases have upheld defined parking easements where the servient owner is not ousted (Kettel).
• Practice point: Clearly define spaces and hours; avoid granting rights that remove meaningful control from the servient owner.

Benn v Hardinge [1992] 1 WLR 1264

• Context: Non-use of a right of way for many years.
• Held: Non-use alone is not abandonment; intention to abandon is needed.
• Practice point: Losing an easement through abandonment is rare; look for clear acts showing intention to give up the right.

Practical Applications

• Title review

  • Read the wording of grants and reservations carefully; check plans and measurements.
  • In registered land, confirm that express easements are properly registered against the servient title. Enter notices where needed.
  • For unregistered legal easements, assess if they are obvious on inspection or known to the buyer.

• Site and enquiry work

  • Inspect the property to spot tracks, gates, pipes, manholes and other physical signs of use.
  • Raise enquiries about occupiers, access routes, parking, services, and long‑standing arrangements.
  • Consider statutory searches and, for right to light matters, specialist surveys.

• Drafting tips

  • Define the route/area, width, vehicles allowed, times of use, and any shared‑use rules.
  • State repair and contribution obligations. Consider rights of entry to maintain.
  • For split sites, address implied rights explicitly to avoid surprises under Wheeldon or s62.

• Development planning

  • Map existing easements early; they may restrict layout, phasing, or crane over‑sailing.
  • For right to light, model any loss; plan set‑backs, cut‑backs or light mitigation where needed.
  • Avoid intensifying use beyond the original grant; if necessary, negotiate a deed varying the easement.

• Dispute management

  • Collect evidence of historical use: photos, statements, delivery records, invoices.
  • Proportional response: minor obstructions may call for negotiation; serious ones may justify an injunction or damages in lieu.
  • For prescription claims, assemble 20+ years of “as of right” use; to resist prescription, issue written permissions or erect clear signage.

• Access to landlocked land

  • First try to agree a deed of grant with neighbours. Implied necessity is narrowly applied.
  • Where a reserved right is needed on a sale, include it expressly; do not rely on implication.

• Maintenance and repair

  • Unless the deed says otherwise, the dominant owner may make reasonable repairs necessary to use the right (Mills v Silver).
  • Improvements that increase the burden require agreement.

• Ending or varying easements

  • Use a deed of release or variation.
  • Merger occurs if the same person acquires both dominant and servient tenements in the same estate and interest; note that combining leasehold and freehold may not extinguish some rights (Wall v Collins [2007] EWCA Civ 444).
  • Non‑use is rarely enough; clear intention to abandon is required.

Summary Checklist

• Apply the Re Ellenborough Park criteria before treating a right as an easement.
• Confirm the type: way, light, support, drainage/water, parking, or recreation.
• Identify the creation route: express, implied (necessity/common intention/Wheeldon/s62), or prescription.
• In registered land, register express legal easements; protect equitable easements by notice.
• Check whether an unregistered legal easement may override under LRA 2002, Sch 3 para 3.
• Keep use within the scope of the grant; avoid intensification that increases the burden.
• Parking rights must not oust the servient owner; define spaces and limits.
• For disputes, gather strong factual evidence and consider proportional remedies.
• To end or vary a right, use a deed; merger and abandonment are narrow routes.

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