Easements — creation, characteristics, and extinguishment

Easements are proprietary rights enjoyed by one landowner over the land of another — rights of way, rights of light, rights of drainage, and the like. They are part of the broader system of property rights in land, sitting alongside leases (W8-W9), restrictive covenants (W11), and licences. Easements bind successors in title and are enforceable against the world; they are therefore proprietary rather than merely contractual.

This week studies the doctrinal architecture of easements in three layers. (i) The four characteristics of an easement (Re Ellenborough Park [1956] Ch 131): dominant and servient tenements; accommodation of the dominant tenement; diversity of ownership; capable of grant. (ii) Methods of creation: express grant or reservation; implied grant or reservation under Wheeldon v Burrows (1879) 12 Ch D 31, by necessity, by common intention, or under section 62 of the Law of Property Act 1925; prescription (long use). (iii) Extinguishment: by release, abandonment, unity of seisin, or under statute.

The topic connects to W2 (registered/unregistered title — easements as overriding interests under Schedule 3 LRA 2002), W11 (freehold covenants — analogous proprietary rights), and W14 (mortgagees'' remedies — easements affecting mortgaged land). It is one of the most heavily examined topics in Land Law and rewards careful doctrinal analysis.

Easements have existed since the medieval period as one of the principal incidents of landholding. The modern law was substantially shaped by Re Ellenborough Park [1956] Ch 131, which articulated the four characteristics of an easement, and by the codification of implied creation in section 62 of the Law of Property Act 1925.

The twentieth century saw extensive case-law on the limits of easements: Hill v Tupper (1863) 2 H & C 121 (right of exclusive boating not an easement); Phipps v Pears [1965] 1 QB 76 (no easement for protection from weather). The most recent significant development is Moncrieff v Jamieson [2007] UKHL 42 (parking can be an easement subject to limits) — a significant qualification of the orthodox position that easements cannot give exclusive possession.

The Law Commission''s 2011 report on easements, covenants and profits à prendre (Report 327) recommended substantial reform, including statutory codification of Wheeldon v Burrows and abolition of the s 62 transformation effect. The recommendations have not been implemented.

(1) The four characteristics of an easement (Re Ellenborough Park [1956] Ch 131). (a) There must be a dominant and servient tenement (two pieces of land, one benefited, one burdened). (b) The easement must accommodate the dominant tenement (must benefit it as land, not merely as personal benefit to the owner). (c) The dominant and servient owners must be different persons. (d) The right must be capable of forming the subject-matter of a grant (sufficiently certain; capable of being defined with precision; not so wide as to amount to exclusive possession).

Five graded practice questions in the panel below.

See the Further Reading panel for Gray and Gray, Megarry and Wade, the Law Commission Report 327, and the post-Moncrieff academic commentary.