Easements — creation, characteristics, extinguishment

Easements are rights enjoyed by one parcel of land over another: a right of way, a right to run pipes, a right to light, or, in modern litigation, a right to park or to use recreational facilities. They are central to Part IB Land Law because they require students to integrate almost every earlier topic: the numerus clausus of proprietary interests; legal and equitable creation; registration; overriding interests; implied acquisition; and the distinction between proprietary rights and merely personal licences.

The conceptual discipline is supplied by Re Ellenborough Park. An easement requires: (i) a dominant tenement; (ii) a servient tenement; (iii) accommodation of the dominant land; (iv) diversity of ownership or occupation; and (v) a right capable of forming the subject matter of a grant. The last criterion prevents English land law from allowing any useful arrangement to harden into property. It is also the source of most modern difficulty, especially parking, storage and recreational rights.

Creation is examined in four principal forms. First, easements may be expressly granted or reserved. If they are to be legal, they must be created by deed and, in registered land, completed by registration where the Land Registration Act 2002 so requires. Secondly, easements may arise by implication, either on a disposition of part or by operation of section 62 of the Law of Property Act 1925. The principal routes are necessity, common intention, the rule in Wheeldon v Burrows, and section 62. Thirdly, easements may arise by prescription, commonly explained through common law prescription, the doctrine of lost modern grant, and the Prescription Act 1832. Fourthly, equitable easements may arise where formality or registration is incomplete but equity recognises specifically enforceable rights.

Extinguishment is less glamorous but highly examinable. An easement may end by express release, unity of ownership and possession, statutory powers, expiry of the estate to which it is appurtenant, or abandonment. Abandonment is not mere non-use: it requires circumstances from which the court can infer an intention permanently to abandon the right.

For a Cambridge supervision essay, the best answers do not recite categories. They explain why the law is cautious: easements bind successors, reduce the servient owner’s liberty, and may affect the marketability of title. Yet excessive caution would make land less usable. The doctrinal tension is therefore between utility and control. That tension appears in the courts’ treatment of parking, recreational rights, section 62 and implied reservation. In problem questions, begin by identifying the alleged right, the dominant and servient land, the mode of creation, whether the right is legal or equitable, and whether it binds the relevant successor under the registered-title rules covered earlier in the course.

The law of easements is historically rooted in the common law’s preference for a limited menu of proprietary interests. English land law has long refused to allow landowners to create any idiosyncratic proprietary burden they choose. That refusal explains both the rule that positive freehold covenants do not generally run with freehold land and the strict classification of easements. The common law will tolerate a burden on Blackacre for the benefit of Whiteacre, but only if the right conforms to the recognised structure of an easement.

The medieval forms were practical: ways, watercourses, rights of pasture and other rights necessary for agrarian landholding. The older vocabulary distinguished easements from profits à prendre. An easement is a right over another’s land; a profit is a right to take something from another’s land, such as minerals, fish or timber. The distinction remains doctrinally important, though the modern syllabus often treats them together for purposes of registration and overriding status.

The nineteenth century supplied two enduring mechanisms of implied creation. The first is the rule in Wheeldon v Burrows, which reflects an assumption about dispositions of part. If an owner uses one part of land for the benefit of another and then conveys the benefited part, the conveyance may carry with it certain quasi-easements which are continuous, apparent and necessary for reasonable enjoyment. The second is the wide conveyancing operation now found in section 62 of the Law of Property Act 1925. Section 62 can convert certain privileges, licences or quasi-easements into full easements on a conveyance. This is not merely technical. It means that language intended as general conveyancing shorthand may have proprietary consequences.

The modern statutory settlement came with the property legislation of 1925 and, later, registered title. Section 1(2)(a) of the Law of Property Act 1925 makes easements capable of being legal interests where they are granted for an estate equivalent to a fee simple absolute in possession or term of years absolute. Section 52 generally requires a deed for the creation of legal interests. In registered land, express grants and reservations must ordinarily be completed by registration. The Land Registration Act 2002 then determines priority, including when legal easements may override by reason of obviousness, actual knowledge or recent exercise.

Modern case law is shaped less by traditional rights of way than by the pressure of intensive land use: parking spaces in developments, access to leisure complexes, services, drainage, balconies, fire escapes, and rights over common parts. The courts have sometimes expanded the category. Regency Villas confirms that a right to use recreational facilities may be an easement if it accommodates timeshare apartments and is sufficiently certain. Equally, the courts have policed the boundary. A purported right to use almost the whole servient land, or to exclude the servient owner from reasonable use, may fail as an easement. The law has therefore moved from a rural vocabulary to an urban and commercial one, but the organising question remains old: when is a useful arrangement sufficiently land-related, definite and limited to bind successors as property?

1. Dominant and servient tenements

There must be land which benefits and land which is burdened. A right held in gross, detached from ownership of land, is not an easement in English law, although profits may sometimes exist in gross. The dominant land must be identified with sufficient certainty. This prevents easements becoming personal contractual benefits masquerading as property.

2. The right must accommodate the dominant tenement

The right must benefit the land as land, not merely confer a personal advantage on its owner. This is a question of connection, not necessity. A right of way to residential land plainly accommodates it. A right to use gardens may accommodate nearby flats, as in Re Ellenborough Park, because it enhances the ordinary enjoyment of the dwellings. A purely commercial advantage, unconnected with the normal use of the dominant land, may fail. The accommodation requirement performs a gatekeeping function: it ensures that easements remain appurtenant proprietary rights rather than transferable personal privileges.

3. Diversity of ownership or occupation

One cannot have an easement over one’s own land. The dominant and servient tenements must be owned or occupied by different persons. Before severance, an owner may use one part of land for the benefit of another; this is called a quasi-easement. On severance, that pattern of use may become an easement by express grant, implication, section 62 or prescription in an appropriate case.

4. The right must be capable of forming the subject matter of a grant

This criterion gathers several limitations. The right must be sufficiently definite; there must be a capable grantor and grantee; the right must not require positive expenditure by the servient owner, save for narrow exceptions; and the right must not amount to joint occupation or substantially deprive the servient owner of possession or control. Rights of way, drainage, support and light are orthodox. Rights to park, store goods, or use leisure facilities are more difficult but not excluded.

The landmark cases should be learned as a doctrinal sequence rather than as isolated authorities.

Re Ellenborough Park supplies the modern test for the existence of an easement. The Court of Appeal upheld rights for owners of houses around a square to use a private garden. Its importance lies in showing that an easement need not be essential to the use of land, nor confined to movement and utilities. Enjoyment of gardens may accommodate residential land. At the same time, the case imposes a structured test which prevents personal recreational privileges being too easily proprietary.

Wheeldon v Burrows is the classic implied grant case. On a sale of part, continuous and apparent quasi-easements used for the benefit of the part granted may pass if necessary for reasonable enjoyment. Its asymmetry is crucial: it favours the grantee, not the grantor. The vendor controls the conveyance and should reserve expressly.

Pwllbach Colliery v Woodman explains implied rights by common intention. The House of Lords accepted that an easement may be implied where necessary to give effect to the purpose of the grant. But the case also warns that the inquiry is directed to the parties’ contemplated use, not to later convenience.

International Tea Stores v Hobbs demonstrates the potency of section 62. A right of access used while land was in common ownership passed on conveyance, showing that statutory general words can have significant proprietary effects.

Batchelor v Marlow and Moncrieff v Jamieson mark the controversy over parking. Batchelor was restrictive: a parking right that left the servient owner with no reasonable use was rejected. Moncrieff, although Scottish, has been influential in English reasoning. It asks more precisely whether the servient owner is excluded from possession or control. English courts now tend to resist Batchelor’s most stringent formulation.

Kettel v Bloomfold shows that a right to park in designated spaces may be an easement. The landlord’s commercial desire to redevelop did not prevent the tenants’ rights being proprietary. The case is useful for problem questions because it combines easements with leasehold context and remedies.

Regency Villas is the leading modern expansionary authority. The Supreme Court held that rights to use sporting and recreational facilities could be easements benefiting timeshare units. The decision confirms that accommodation can include modern recreational enjoyment where sufficiently connected with the ordinary use of the dominant land. It also shows the continuing elasticity of the fourth Ellenborough criterion.

For extinguishment, Benn v Hardinge is the conventional authority: non-use, even for a long period, does not by itself extinguish an easement. The court requires evidence of abandonment. This protects the proprietary character of easements but can also preserve obsolete burdens. In exam answers, pair Benn with commercial common sense: a purchaser may find that an old right remains alive unless there is strong evidence of release or abandonment.

See practice questions section below.

See further reading section below.