Andrew Noble LLB (Hons) [Manchester] FRICS, FCIArb

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Please read this website's Legal Notice

Nature of Easements

Easements, covenants and profits are all real property rights enjoyed by one party relating to another’s land. They fall short of rights of ownership or possession and amount in law to limited rights,. Easements and covenants are similar yet complementary, each comprising an important tool for facilitating and controlling the use of land.

An easement is a right annexed to land that is in different ownership either:

(a) to use land in some particular manner that does not involve the taking away of the natural produce of that land or of the soil itself; or
(b) to prevent the owner of land from using his land in some particular manner.

These rights can exist only if annexed to, and if they are for the benefit of, other land. The land to which they are annexed is called the 'dominant tenement', and the land over which the rights are exercised the 'servient tenement'. An easement is thus always appurtenant to land, and never appendant or in ‘gross’.

Accordingly, a right is 'appurtenant' to land when it is not attached to the land by virtue of the original tenure created by the grant, as in the case of rights appendant, but arises and becomes attached to the land by virtue of some other grant, express or implied, or by prescription at common law, or under statute.

A right is said to be 'in gross' where it is not annexed to the ownership of other land at all, but exists as an independent right, capable of being dealt with by itself as a real proprietary right.

Criteria for Easements

In Re Ellenborough Park it was stated by the head Judge in the Court of Appeal that unless four requirements are satisfied, a right cannot be an easement:

(a) there must be a dominant tenement and a servient tenement;
(b) the easement must accommodate the dominant tenement;
(c) the dominant and servient tenements must be owned by different
persons; and
(d) the easement must be capable of forming the subject matter of a grant.

Re Ellenborough Park [1956] Ch 131, 163

It follows that some disputes relate to establishing whether the right claimed has all the qualities of an easement (see below disputes).

Rationale for Easements

The rationale of the above criteria of Lord Evershed MR in Re Ellenborough Park seems to be:

(1) To limit the types of rights that qualify as easements (e.g. to avoid capricious and personal benefits becoming easements).
(2) To promote clarity in relation to the creation of easements;
(3) To ensure some degree of nexus between the lands benefited and burdened.

Types of Easements

Although there are many other easements, the most common are:

(1) rights of way;
(2) rights to light;
(3) rights in respect of water; and
(4) rights to support;

Other types of easements can be found in relation to pipes and party walls by way of example (see below).

The only limits to the rights which may exist as easements are that, to be an easement, the right must be annexed to a dominant tenement for the benefit thereof, and must possess all the essential characteristics of an easement, as set out above.

Creation of Easements

Although beyond the scope of this site, easements and profits à prendre may be created or arise:

(a) by express reservation or grant in a deed;
(b) by implied reservation or grant arising out of the circumstances of the case;
(c) by prescription:
i. at common law;
ii. under the doctrine of a lost modern grant; or
iii. by statute.

Implied Easements

There are currently four principal methods of implication of easements.

(1) the rule in Wheeldon v Burrows;
(2) section 62 of the Law of Property Act 1925;
(3) easements of necessity; and
(4) easements of intended use.

(1) and (2) take effect only on grant and both give rise to the acquisition of easements as a result of use of the grantor’s land prior to the relevant transaction and are broadly based on the past exercise of particular rights.

(3) and (4) on the other hand, take effect both on grant and on reservation and are forward looking where the court is required to examine what the parties to a transaction were contemplating in terms of the future use of the properties in question.

These methods of implying easements are uncertain in their scope, overly complicated, and sometimes difficult to apply. They often give rise to disputes and sometimes assist where the conveyancing transaction has gone wrong.

Creation by Prescription

A right to an easement (or profit à prendre) may be established by prescription as follows:

(a) at common law;
(b) under the doctrine of a lost modern grant; and
(c )by statute.

The whole doctrine of prescription, apart from that created by statute, depends upon the presumption that where some property interest has been claimed as a right, and enjoyed as such, there must have been a lawful origin by grant.

A claim by prescription must be in favour of the fee simple of the dominant tenement as against the fee simple of the servient tenement. Therefore a tenant cannot acquire an easement against his landlord, except as to light, although a tenant may by use over a stranger's land gain a prescriptive right of way for his landlord which he can use while he is tenant and which his landlord can grant to a subsequent tenant.

Prescription at common law is based upon a presumed grant made before the time 'whereof the memory of man runneth not to the contrary', which was very early fixed as the year 1189, the first year of the reign of Richard I, and enjoyed from 'time immemorial'. A right to light is difficult to acquire on this basis as the date of the building for which the right is claimed is normally available to the disputing parties and few buildings are old enough to have acquired such a right.

The user must be 'as of right' and therefore e.g. not by permission. Further, the user must have been continuous so that the asserted right has been exercised whenever desired. Sometimes disputes revolve around whether the rights claimed and disputed and defended on the basis that they are mere isolated acts.

As stated, a claim to a presumed easement or profit based on prescription at common law might be defeated by adducing evidence of interruption of enjoyment or the right was founded upon isolated acts. This resulted in Claimants pleading the doctrine of a lost modern grant. Claimants would have to prove (i) long enjoyment of the right claimed, (ii) that the right had been conferred by a grant which had been lost by the claimant or a predecessor in title. This doctrine allowed Judges to attribute or presume a lawful origin to any long continued enjoyment coupled with a claim of right.

For different reasons, it is also difficult to establish a right to light on the basis of this doctrine.It may be necessary however to rely on the doctrine of the lost modern grant, where for example:
(a) there has been an interruption of enjoyment within the statutory period; or
(b) where the enjoyment does not continue down to the commencement of the action; or
(c) where no statutory period applies to the particular right claimed.

Proprietary Estoppel

Easements may also arise via the application of the doctrine of proprietary estoppel.

Examples of Right of Way Disputes

Sometimes disputes arise concerning whether rights of way or profits de facto exist in the first place eg if whether they have de fact been enjoyed for a sufficiently long period, and in the case of rights claimed by long enjoyment , without force (nec vi), without secrecy (nec clam) and without permission (nec precario)

Other disputes concern the way in which the claimed right is being enjoyed e.g. a right to pass from A to B to C does not allow the party with the claimed right to divert to point D. Whilst others may relate with disturbance or interference of rights, however acquired.

Further examples concern, whether the right claimed is in the nature of an easement eg in the leading case of Re Ellenborough Park the CA (Lord Evershed MR) asked:
(1) are the rights purported to be granted too wide and vague in character?
(2) are the rights mere rights of recreation? and
(3) do such rights amount to joint occupation or substantially deprive the
servient tenement owners of possession?

Thus, there can be no grant of an easement of free flowing air, even for a windmill!!
There needs to be a sufficient nexus between the dominant and servient land for the easement to exist in the first place, which sometimes forms the basis of disputes.

Whether the right claimed is reasonably necessary for the better enjoyment of the dominant tenement or whether the right claimed is too tenuous to amount to an easement sometimes is the area of dispute:

eg in Moody v Steggles the grant of a right to fix a signboard to the adjoining property advertising the public house which constituted the dominant tenement was held to comprise an easement.

In Copeland v Greenhalf leaving carts and carriages on the neighbour’s verge was not objectionable on the ground that it accommodated the wheelwright’s business being conducted on the purportedly dominant land.

However, in Hunter v Canary Wharf Limited, although the right to television reception was not pleaded as an easement, the House of Lords nonetheless considered the issue. Lord Hoffmann concluded that such a right should not be recognised as it would place a burden on a wide and indeterminate area.

In Re Ellenborough Park a right to use an open space was recognised as an easement. The right expressly granted, when the house now belonging to the claimant was first built, was “the full enjoyment … at all times hereafter in common with the other persons to whom such easements may be granted of the pleasure ground”. Although it is accepted that certain recreational rights cannot take effect as easements, on the basis that they do not accommodate the dominant land, the Court of Appeal in Re Ellenborough Park considered that “the pleasure ground” was in effect a communal garden, and thereby enhanced the normal enjoyment and use of the house as a house.

Disturbance of Easements and Profits à prendre

Sometimes disputes relate to the interference with the exercise of rights of way and/or profits.

Adverse Possession and Rights of Way Claims

Although distinct causes of action, sometimes right of way claims feature with Adverse possession claims. Further the extent to which the right of way is enjoyed - the so called ouster principle, is a question of degree and sometimes forms part of the dispute: Thus Mr Justice Upjohn rejected the Right of Way claim in the Wheelright’s case above on the following basis:

“…I think that the right claimed goes wholly outside any normal idea of
an easement, that is, the right of the owner or the occupier of a
dominant tenement over a servient tenement. This claim (to which no
closely related authority has been referred to me) really amounts to a
claim to a joint user of the land by the defendant. Practically, the
defendant is claiming the whole beneficial user of the strip of land ... ;
he can leave as many or as few lorries there as he likes for as long as
he likes; he may enter on it by himself, his servants and agents to do
repair work thereon. In my judgment, that is not a claim which can be
established as an easement. It is virtually a claim to possession of the
servient tenement, if necessary to the exclusion of the owner; or, at
any rate, to a joint user, and no authority has been cited to me which
would justify the conclusion that a right of this wide and undefined
nature can be the proper subject-matter of an easement. It seems to
me that to succeed, this claim must amount to a successful claim of
possession by reason of long adverse possession…”

Right claimed must not be too Extensive

If the right granted in relation to the area over which it is exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant.

Car Parking

The ouster principle has been most recently considered in relation to parking rights. The right to park a vehicle or vehicles in principle can exist as an easement. However, whereas it has been upheld in relation to park a car anywhere within a defined area (eg in and around a block of flats: Newman v Jones), a right to park a vehicle in a specific car parking space may not be upheld as that right would probably be too extensive.

Implied easements

Often difficult disputes arise concerning the implied easements where land was previously in common ownership, however they arise. Such disputes can involve freehold and leasehold property. The various ways of implying easements are uncertain in their scope and complex, often leading to disputes in practice. Sometimes they can come to the rescue where there have been conveyancing errors, exposing purchasers to complex litigation.

Extinguishing easements and profits

Easements and profits à prendre may be extinguished by:

(a) release, either express, or implied by circumstances, such as the dominant owner's conduct showing an abandonment of his right;
(b) statute either expressly or impliedly;
(c) exhaustion of the subject matter, for profits à prendre only.

Easements and profits à prendre appurtenant to land may be extinguished by subsequent unity of ownership of the dominant and the servient tenement or by destruction of either tenement.


The remedy sought will depend upon the nature of the Claim. Estlablishing the infringement of legal rights will normally entitle the Claimant to damages (although only nominal damages may be awarded in some cases).

Relief claimed from the Court may also be: (i) a court declaration of the Claimant’s rights or (ii) an injunction. Such relief however may only be granted where the court considers it just and equitable that a declaration should be made or an injunction granted.

Even where the court decides that the Claimant’s right has been infringed, but e.g. amounts to an isolated trespass the court may award damages under its general jurisdiction in lieu of granting an injunction, which may be calculated by reference to such sum of money as the claimant might reasonably have demanded for the infringement of his rights.

In the case of substantial interference with the enjoyment of an easement this is a civil wrong akin to private nuisance and sounds in damages and are often coupled with an anticipatory injunction on the basis that if the injunction is not granted, damage will follow. There can be no action in trespass as the Claimant owner of an easement does not own the servient tenement.

The remedies available to the claimant for such a nuisance or threatened nuisance include a declaration of rights


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