Easements — creation, characteristics, and extinguishment

Easements are proprietary rights enjoyed by one landowner over another's land that bind successors in title. Four characteristics must be satisfied (Re Ellenborough Park [1956] Ch 131): (1) dominant and servient tenements must exist; (2) the easement must accommodate the dominant tenement; (3) dominant and servient owners must be different persons; (4) the right must be capable of forming the subject-matter of a grant. This four-part test ensures easements remain limited proprietary rights rather than personal benefits or exclusive possession, preserving the distinction between easements and other property interests like leases or licences.

Re Ellenborough Park [1956] Ch 131: Established the four characteristics test for easements, holding recreational use of a private park could constitute an easement. Lord Evershed MR's framework remains the doctrinal anchor.

Wheeldon v Burrows (1879) 12 Ch D 31: On sale of part, continuous and apparent quasi-easements necessary for reasonable enjoyment pass by implied grant. Foundation for implied creation doctrine.

Moncrieff v Jamieson [2007] UKHL 42: Parking can be an easement if reasonable use by servient owner remains possible. Lord Scott's test focuses on substance not extent, qualifying but not abolishing the exclusive possession prohibition.

Hill v Tupper (1863) 2 H & C 121: Exclusive canal boating rights were merely personal, not accommodating the dominant tenement. Leading authority on the accommodation requirement.

Wright v Macadam [1949] 2 KB 744: Section 62 LPA 1925 can transform permissions into easements on conveyance. Established the statutory transformation effect's broad scope.

Courts apply a sequential analysis: (1) Test all four Re Ellenborough Park characteristics—failure on any one defeats the claim. (2) If creation is disputed, examine express grant (deed required under s 52 LPA 1925), then implied routes: necessity, common intention, Wheeldon v Burrows (continuous/apparent/necessary), or s 62 transformation. (3) For prescription claims, verify 'as of right' use (without force, secrecy, or permission) for statutory periods. (4) In registered land, check Schedule 3 paragraph 3 LRA 2002—unregistered easements may override if obvious on inspection or recently exercised. Key factual triggers include landlocked parcels (necessity), visible pathways (Wheeldon), and existing permissions at conveyance (s 62).

Students consistently confuse Wheeldon v Burrows with s 62 LPA 1925—they overlap but operate differently (quasi-easements versus existing rights). Many misstate Moncrieff as abolishing the exclusive possession bar when it merely qualified it. The Sovmots/P&S Platt tension on s 62's diversity requirement catches many unprepared. Forgetting that all four Re Ellenborough Park characteristics must be satisfied is fatal. Finally, missing Schedule 3 LRA 2002's overriding interest provisions for unregistered easements loses crucial marks in problem questions.