Nature of Easements

An easement is a right which benefits a piece of land. This is known as the dominant land.

This right is enjoyed over another piece of land owned by someone else - this is known as the servient land.

Imagine that you are looking to purchase a property, which is landlocked on all sides.  The nearest road is some distance away, which is owned by a third party. 

You might ask how do you get to the road? 

The answer is in the law of easements. 

An easement is a right enjoyed by the owner of one plot of land over another plot of land owned by a separate entity. They can be positive (i.e. a right to do something) or negative (i.e. preventing something being done).

Positive Easements

An easement will normally allow the owner of the dominant land to do something on servient land, such as travel across it, or run services over it. This is known as a positive easement.

Examples of a positive easements are:

• Use of water pipes or drains
• Use of gas pipes or electricity wires
• Passing over a path, road or way
• Discharge of water into a watercourse

Negative Easements

On the other hand, an easement can be negative when the dominant land owner has the right to limit what the servient owner may do on the land.

An example of a negative easement is where the servient owner is not permitted to construct buildings that would interfere with someone’s right to light.

Further examples of a negative easements are:

• A right of air
• A right of support from a building
• A right to receive a flow of water for an artificial stream

In the case of Re Ellenborough Park, it set out the four essential criteria of an easement, which are as follows:

1. There must be dominant and servient land. Dominant land is the land that benefits from the easement and the servient land is the land burdened by the easement
2. The easement must accommodate the dominant tenement
3. The dominant and servient owners must be different people
4. The right must be capable of forming the subject matter of a grant

A lay person might ask, what does this mean? It helps to look at these criteria in light of our case above.

In that case:

The dominant land is the landlocked house. The servient land is the land which must be crossed to access the road.

To accommodate the dominant tenement, this means that the easement must benefit the dominant tenement by improving it or making its use more convenient in some way connected with the normal use of the property. 

In our case above, if a right of way was granted over the land to the road, it would improve the access. To be capable of “lying in grant” the easement must be capable of being the subject matter of a deed. 

This is because an easement is a registrable property right, even if it has not been granted.

Implied grant

The grant of an easement may be implied, where the owner of the servient land, disposes of part of its land. This type of easement can be created by:

• A reason of necessity - This means it must be completely impossible to use the land without the easement. It will not be deemed to be necessary if it is just advantageous.
• By common intention by the parties - This is where both parties intend the property to be used in a specific way.
• by the exercise of the right is necessary for the reasonable enjoyment of the dominant land - This is known as the rule in Wheeldon v Burrows.

Easements can also be acquired by operation of Section 62 of the Law of Property Act 1925. This deems the necessary words to be written into the conveyance of a legal estate as express provisions.

Prescription

In the absence of an express or an implied grant, an easement can be created by prescription. This means that the dominant land makes use of a right over the servient land for a long period of time, without interference. There are three types of methods to acquire an easement by prescription, they are:

• Common law
• Doctrine of lost modern grant
• Under the Prescription Act 1832

Contract

A contract to grant a legal easement is a contract for the sale or other disposition of an interest within land and the easement will become legal when the contract has completed.

Proprietary estoppel

An equitable easement can be created by the doctrine of proprietary estoppel where:

• The servient landowner allows the dominant landowner to believe that it has or will enjoy the benefit of the servient land;
• The dominant landowner acts to its detriment in reliance of this belief and to the knowledge of the servient owner; and
• The servient landowner then seeks to take an unconscionable advantage of the dominant landowner by denying the right or benefit that had been expected.