Easements Explained

What you will find on this page:

1. What is an Easement?
2. Types of Easement
3. How are Easements Created?
   1. Express Grant
   2. Implication
   3. Prescription
   4. Necessity
4. Exclusion of Easements
5. Common Issues with Easements
   1. Expansion and Intensification
   2. Restrictions on Servient Title
6. Extinguishing Easements
7. Halsall v Brizell - the doctrine of mutual benefit and burden
8. Reservations

What is an Easement?

An easement is a type of legal (or sometimes, equitable) interest in land. Not every right over the land of another person is an easement. The criteria that must be satisfied in order for a valid easement to exist were set out in the case of Re Ellenbourough Park [1956]. They are:

1. There must be a dominant and a servient tenement;
2. The easement must accommodate the dominant land;
3. The dominant and servient owners must be different persons;
4. The right must be capable of forming the subject matter of a grant;

There Must Be a Dominant and Servient Tenement

This means there must be two parcels of land (tenements), one which has the benefit of the right (the dominant tenement) and another over which the right is exercised (the servient tenement). The parcels of land do not have to be immediately adjacent to each other.

The Easement Must Accommodate the Dominant Land

An easement will be granted to an individual but it has to be capable of benefitting any owner of the dominant land rather than simply the current occupier (and it must be clear that it is intended to benefit all future owners, not just the individual to whom it is granted). 

The Dominant and Servient Owners Must be Different Persons

A person cannot exercise a right against themselves, therefore if the land which benefits from the right and the land over which it is exercised come into the same ownership, an easement cannot exist.

The Right Must Be Capable of Forming the Subject Matter of a Grant

This is probably the most complicated limb of the test of an easement. The scope must be clearly defined, for example a right way for the purpose of access to and from the dominant land is fine however a "right to user the servient land" is not, it is too vague. It must not deprive the servient owner of any meaningful use of the land, so if as a result of the right being exercised, the servient owners cannot use the land for themselves (without interfering with the exercise of the right) that cannot be an easement. Finally the right cannot be purely recreational - it must benefit the dominant land specifically.

So in summary, to be an easement a right must be exercised over one defined area of land for the better enjoyment of another defined area, without excluding the owner of the servient land and the two parcels of land must be separately owned.