An easement is a right enjoyed by one piece of land (the dominant tenement) over another piece of land (the servient tenement). It 'runs with the land', meaning it binds successors in title. If your neighbour has a right of way over your driveway, that right survives even if you both sell your properties. Easements are a fundamental part of land law and come up frequently in SQE1.
Three areas are exam favourites: (1) Can the claimed right qualify as an easement at all? (Apply Re Ellenborough Park.) (2) How was it created? (Express, implied, or prescription.) (3) Can it be enforced? Know the defences. Master these three questions and you will handle most easement problems.
Not every right over land is an easement. For a right to qualify, it must satisfy the criteria laid down in Re Ellenborough Park [1956] Ch 131. The court identified four essential requirements. If any one is missing, the claimed right is NOT an easement.
[1956] Ch 131
A developer built houses around a central garden square. The residents claimed a right to use the garden. The question was whether this right was an easement or something else (perhaps a licence or a profit a prendre).
The Court of Appeal held that the right to use the garden square WAS an easement. It benefited the houses as dominant tenements and was capable of being granted as an easement.
Established the four criteria for an easement: (1) there must be a dominant and servient tenement; (2) the easement must accommodate the dominant tenement; (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 two pieces of land: the dominant tenement (which enjoys the right) and the servient tenement (which bears the burden). A right 'in gross' (attached to a person rather than a piece of land) is not an easement. For example, a right to fish in a lake that is not attached to any neighbouring land would not be an easement.
In Hill v Tupper (1863), the claimant had a right to put boats on a canal and charge tolls. The court held this was NOT an easement because the right was purely commercial and did not benefit any dominant tenement. It was a mere licence.
The easement must be connected with the enjoyment of the dominant land. It must make the dominant land 'better, more convenient, or more valuable' (Lord Westbury in Re Ellenborough Park). A purely personal or commercial right does NOT accommodate the dominant tenement.
[1965] 1 QB 173
A tenant of a flat claimed a right to park his car in an adjacent car park. The car park was not part of the flat nor physically connected to it.
The right to park did NOT qualify as an easement because it was a purely personal right for the tenant's convenience and did not genuinely accommodate or benefit the dominant tenement (the flat).
A right must have a genuine connection with the enjoyment of the dominant tenement. Personal convenience alone is insufficient. The right must be reasonably necessary for the better enjoyment of the dominant land.
Parking rights are contentious. The modern approach is more flexible. In Batchelor v Marlow [2003], a right to park one car was held to be capable of being an easement. The trend is towards recognising parking easements where there is a genuine connection to the dominant tenement. Contrast with Wong v Beaumont where there was no such connection.
The dominant and servient tenements must be owned or occupied by different persons. A person cannot have an easement over their own land. This seems obvious, but it matters at the moment of creation: the two parcels must be in separate ownership when the easement is created.
The right must be capable of being created by grant. This means it must be (a) sufficiently definite (clear what the right is), (b) not too wide or uncertain in scope, and (c) within the category of rights recognised as easements at law.
In Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, a right to 'all the coal under the land' was held too uncertain. The right must be expressed with sufficient precision. Vague or open-ended rights will fail this criterion.
Easements come in many forms, but the most commonly tested types are rights of way, rights to light, rights of support, and rights of drainage and utilities.
| Type | Description | Key Points |
|---|---|---|
| Right of Way | Right to pass over servient land | Can be on foot, by vehicle, or both; must follow a defined route |
| Right to Light | Right to receive light through defined apertures | Protected under Prescription Act 1832; measured by the 50/50 rule |
| Right of Support | Right to have land/building supported by neighbouring land | Natural support exists without easement; lateral support for buildings may need one |
| Right of Drainage | Right to discharge water through servient land | Must not cause unreasonable interference; pipes must be properly maintained |
| Right to Services | Right to run utilities (water, gas, electricity) through servient land | Usually created expressly; maintenance obligations can be problematic |
Easements can be created in three main ways: (1) Express grant or reservation (by deed or statute); (2) Implied grant (by necessity, common intention, or under s.62 LPA 1925); (3) Prescription (by long use). The method of creation affects the scope and enforceability of the easement.
An express grant occurs when the owner of the servient tenement grants an easement to the owner of the dominant tenement. This must be done by deed (Law of Property (Miscellaneous Provisions) Act 1989 s.1). The deed should clearly describe the right, the dominant and servient land, and any limitations.
An express reservation occurs when a landowner sells part of their land and reserves (keeps) an easement over the part sold. For example, if you sell the back half of your garden but reserve a right of way over the back garden to reach a garage. Reservation must be by deed. The 'doctrine of non-derogation from grant' prevents a grantor from doing something that renders the granted land substantially less useful.
A deed is required for the creation or transfer of an interest in land, including easements. The deed must be signed, witnessed, and delivered.
Even without an express deed, an easement may be implied from the circumstances. Implied easements arise when land is divided (commonly called 'quasi-easements'). The three main routes are: necessity, common intention, and Wheeldon v Burrows.
An easement of necessity arises when a parcel of land is landlocked - it has no access to a public road at all, and without the easement, the land would be unusable. This is the narrowest category. 'Convenience' or 'better access' is NOT enough - there must be strict, absolute necessity.
In Nickerson v Barraclough [1981] Ch 426, the court refused to imply an easement where the claimant had an alternative (though less convenient) route to the public highway. The test is strict legal necessity, not reasonable convenience or practical necessity.
(1879) 12 Ch D 31
The defendant sold part of his land to the claimant. The claimant argued that various rights over the retained land should be implied into the conveyance because they had been used before the sale.
Thesiger LJ held that on the grant of part of land, the grantee acquires easements that were: (a) necessary for the reasonable enjoyment of the land granted; AND (b) continuous and apparent at the time of the grant, AND used by the grantor for the benefit of the part granted.
On division of land, quasi-easements (rights used by the owner over their own land) can become true easements if they were continuous and apparent and necessary for the reasonable enjoyment of the granted land.
A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof.
Section 62 operates as a statutory 'catch-all'. When land is conveyed, all existing quasi-easements automatically transfer as legal easements, even if they are not specifically mentioned in the conveyance. This is wider than Wheeldon v Burrows because it does NOT require the right to be continuous and apparent, or necessary for reasonable enjoyment.
Key distinction: Wheeldon v Burrows requires the right to be continuous and apparent AND necessary for reasonable enjoyment. Section 62 does NOT require either. S.62 is wider but only applies to 'privileges and easements' - it cannot create new rights. If there was no pre-existing quasi-easement, s.62 has nothing to operate on. Also, s.62 can be expressly excluded in the conveyance.
Section 62 only operates where there is a 'conveyance' of the whole or part of the land. It does NOT apply to leases of less than 40 years (s.62(4)), and it can be excluded by express wording in the conveyance.
Prescription allows an easement to be acquired through long, uninterrupted use 'as of right' (nec vi, nec clam, nec precario - without force, without secrecy, without permission). There are three methods: the Prescription Act 1832, lost modern grant, and common law prescription (time immemorial).
| Feature | Prescription Act 1832 | Lost Modern Grant | Common Law |
|---|---|---|---|
| Period of Use | 20 years (full right) or 40 years (presumed) | 20 years uninterrupted | Since 1189 (time immemorial) |
| Type of Right | Only for specific rights listed in the Act | Any easement capable of grant | Any easement capable of grant |
| Right to Light | Yes - 20 year rule or 40 year absolute rule | Yes | Yes |
| Right of Way | Yes - 40 year rule | Yes | Yes |
| Basis | Statutory presumption after set periods | Presumption of a lost express grant | Presumed grant since time immemorial |
| Practical Use | Most common for right to light | Most flexible - widely used | Rarely used (impossible to prove) |
| Interruption | Written objection or physical interruption within the period | Any interruption breaks continuity | Theoretically never (since 1189) |
Under s.3 of the Prescription Act 1832, if light has been enjoyed for 20 years WITHOUT any written consent or sufficient interruption, the right becomes 'absolute and indefeasible'. The servient owner cannot then block the light. The 20-year period runs backwards from the point when the dominant owner first needs to assert the right (usually when the servient owner proposes to block the light).
Under s.4, if light has been enjoyed for a full 40 years (without interruption), the right becomes absolute regardless of whether the servient owner objects during that period. This is stronger than the 20-year rule because it does not require the dominant owner to respond to an obstruction.
Under s.2, a right of way can be acquired if used for 40 years 'without interruption'. This creates a presumption that the right was enjoyed 'of right', meaning the servient owner cannot dispute it. Unlike the right to light, there is no 20-year absolute rule for rights of way under the Act.
Where the access and use of light to and for any dwelling-house, workshop, or other building have been actually enjoyed therewith for the full period of 20 years without interruption, the right is absolute unless it was enjoyed by some consent or agreement expressly given for that purpose.
Lost modern grant is a common law fiction. If the claimant can show 20 years of uninterrupted use 'as of right', the court will presume that an express grant was once made but the deed has been lost. This is the most flexible prescription method because it can apply to ANY type of easement (not just those listed in the Prescription Act).
Lost modern grant is more flexible because it applies to any easement capable of grant. The Prescription Act only covers specific rights (light, way, water). However, lost modern grant is a common law presumption, not a statutory right, so it can be rebutted by evidence that no grant was ever made.
The owner of the dominant tenement can enforce an easement against the owner of the servient tenement, even if they are not the original parties to the grant (because easements run with the land). The main remedies are damages and injunction. There are several defences available to a servient owner.
An easement must be used reasonably and in accordance with its terms. If the dominant owner increases the burden on the servient land beyond what was originally contemplated (e.g. using a right of way for heavy commercial vehicles when it was granted for pedestrian access), the servient owner can seek an injunction to prevent the excessive use.
The Law Commission has recommended replacing the current prescription rules with a single, uniform 20-year period for all types of easements. The Prescription Act 1832 is widely criticised as archaic, complex, and inconsistent. The proposed reform would create a simpler, more predictable system. However, these recommendations have not yet been implemented in legislation.
For SQE1 purposes, know that the Law Commission has proposed reform but the current law still relies on the Prescription Act 1832 and lost modern grant. An answer that shows awareness of both the current law and the proposed reform will score well.
DANC helps you remember the four Re Ellenborough Park criteria: Dominant and servient tenement, Accommodates the dominant, Different owners, Capable of grant. If any of DANC fails, there is no easement.
Easements are created three ways: Express (deed), Implied (necessity, common intention, Wheeldon v Burrows, s.62), Prescription (PA 1832, lost modern grant, common law). Think EIP: Express, Implied, Prescription.
For prescription, use must be 'as of right' (nec vi, nec clam, nec precario): without force (open and not covert), without secrecy (the servient owner knows about it), and without permission (if the servient owner gave permission, the clock resets).