Land Law: Easements

An easement is a right enjoyed by one piece of land over neighbouring land, such as a right of way or a right to light. It is a proprietary right, so it can bind successors, which is why the law sets clear conditions for what can qualify as an easement and how one is acquired.

1. The Four Characteristics

The defining test comes from a single leading case.

Unpacking the fourth characteristic

To be capable of forming the subject matter of a grant, the right must be sufficiently definite, must not impose a positive burden of expenditure on the servient owner, and must not amount to exclusive possession of the servient land. A right to a view, or to general recreation, has traditionally been too vague to qualify.

2. Acquisition

Express grant or reservation

An easement can be created expressly by deed when land is sold or leased, either granted to the buyer or reserved by the seller.

Implied acquisition

Where the conveyance is silent, an easement may be implied by necessity, by common intention, under the rule in Wheeldon v Burrows (which can convert a prior quasi-easement used by a common owner into a full easement on sale), or by the operation of section 62 of the Law of Property Act 1925, which can upgrade existing rights and informal permissions on a conveyance.

Prescription

Long use can mature into an easement. Use that is open, without force and without permission, continued for 20 years, can give rise to a prescriptive easement, including under the doctrine of lost modern grant.

3. What Easements Are Not

An easement must be distinguished from a mere licence (a personal permission that does not bind successors) and from a profit a prendre (a right to take something from the land, such as timber or fish). The proprietary, land-benefiting nature of an easement is what sets it apart.

4. Worked Example

Characteristics: there is a dominant (rear) and servient (front) tenement in different ownership after the sale, and a right of way accommodates the rear land (Re Ellenborough Park). Acquisition: with no express grant, a right of way may be implied by necessity (the rear plot is otherwise landlocked) or under Wheeldon v Burrows from the prior use of the track. Conclusion: the buyer most likely takes an implied right of way.

Examiner Insights

Conclusion

Easements balance the benefit to one landowner against the burden on another. Test the four characteristics, then work through express, implied and prescriptive acquisition, keeping easements firmly distinct from licences and profits.