Easements are interests in land. Unlike fee simple ownership, they are nonpossessory. Rather, they allow the easement holder to use or control someone else’s land. Suppose Anna owns Blackacre, and Brad owns Whiteacre, which borders Blackacre. Anna would like to cross Whiteacre to reach Blackacre. She could ask Brad for permission to cross, but even if he says yes, permission can be revoked. Brad might also convey Whiteacre to a less welcoming owner. Anna may therefore wish to acquire a property interest that gives her an irrevocable right to cross over Whiteacre. If Brad conveys her this interest (by sale or grant), Anna now owns an easement of access, which is a right to enter and cross through someone’s land on the way to someplace else. Terminology. Easements come in multiple flavors. The first distinction is between affirmative and negative easements. An affirmative easement lets the owner do something on (or affecting) the land of another, known as the servient estate (or servient tenement). The right is the benefit of the easement, and the obligation on the servient estate is its burden. As noted above, a common affirmative easement is an easement of access (also known as an easement of way), which requires the owner of the servient estate to allow the easement holder to travel on the land to reach another location. In the example above, Anna has an affirmative easement to cross Whiteacre, the servient estate, to access Blackacre.1 A negative easement prohibits the owner of the servient estate from engaging in some action on the land. For example, if Anna has a solar panel on her property, she might acquire a solar easement from Brad that would prohibit the construction of any structures on Whiteacre that might block the sun from Anna’s panel on Blackacre. Another distinction is between easements appurtenant and easements in gross. An easement appurtenant benefits another piece of land, the dominant estate. The owner of the dominant estate exercises the rights of the easement. If ownership of the dominant estate changes, the new owner exercises the powers of the easement; the prior owner retains no interest. So if Anna’s easement to cross Whiteacre to reach Blackacre is an easement appurtenant, Blackacre is the dominant estate. If she conveys Blackacre to Charlie, Charlie becomes the owner of the easement. This work covers the University of London LLB Law program property law course. All the best in the exams. https://opencasebook.org/casebooks/510-open-source-property/resources/8.1-a-what-is-an-easement/

1. This is an introduction to University of London Easement Law, chapter 8.
This introduction covers basic principles with questions and answers and how
to go about answering easement questions as well as a look at some troubling
areas of easements.
Prepared by Shawn Freeman LLB (Hon)
EASEMENT LAW

2. Imagine a farmhouse landlocked on all sides by fields, half a mile from the
nearest road. The farm house and the fields are in separate ownership. How
does the owner of the farmhouse get to the road? The answer to be found in
the law of easements.
An easement is the right of one landowner to make use of another nearby
piece of land for the benefit of his own land. An easement may take many
forms, however the most commonly encountered easements are as follows:
A right of way;
A right to light;
A right of support.
WHAT IS AN EASEMENT

3. The classic case of Re: Ellenborough Park [1956] Ch. 131 sets out
the four essential characteristics of an easement which are as
follows:
There must be a dominant and servient tenement;
The easement must accommodate the dominant tenement;
The dominant and servient owners must be different people;
The right must be capable of forming the subject matter of a grant.
KEY PRINCIPLES OF AN
EASEMENT

4. EXAMPLE OF WHAT AN
EASEMENT LOOKS LIKE.

5. EXAMPLE OF WHAT AN
EASEMENT LOOKS LIKE.

6. 1) There must be a dominant and sevient tenement.
2) The easement must accommodate the dominant
tenement. Hill v Tupper and Pugh v Savage.
3) The dominant and servient tenements must be
owned or occupied by different a person. Wheelon v
Burrows.
4) The easement must be capable of forming the
subject-matter of a grant. Bryant v Lefever.
RE ELLENBOROUGH PARK TEST
CRITERIA.

7. 1. Express grant- Section LPA 1925 states that easements are an interest
capable of being legal, s.52 of the act stating that all conveyances
(transfers of interests in land) will be void unless created by deed.
2. Implied easement- by an implication of a vendors intention to sell one
plot of land but retains another neighboring plot. Easement arises in
favor of the retained plot(reservation) or the sold plot(grant) because the
vendor would have had time to do a sale clause to benefit himself from
the very out set.
3. Implied grant- normally on the conveyance of land, where land is
transferred, subject to contrary intention, an existing easement happen
automatically under s.62 LPA. Rule in Wheeldon v Burrows. A quasi-
easement is where a person who transfers part of his land to another its
implied the easements is carried in the rights.
CREATION OF AN EASEMENT.

8. 1) Legal easements- these can be created expressly or impliedly. The
interest in the land must be the same as a fee simple in possession or a
term of years.
2) Equitable easements- easements held for a period. This can be
equitable if it wasn’t created by one of the methods for creating legal
easements.
3) Express reservation- this occurs where a dominant tenement
intentionally or expressly keeps rights for themselves when they sell or
lease part of their land.
CREATION OF AN EASEMENT
CONT.

9. Implied reservation;
The two types that will easements to be implied in favor of a grantor.
Easements of necessity- the land would be useless without an easement.
E.g. anything that would hinder the enjoyment of the land, such as a walk way
or drive way if you drive however things such as drainage and fencing doesn’t
apply since the land of enjoyment isn't hindered by those.
Nickerson v Barraclough.
Common intention- the intention of both parties at the time of the grant.
CREATION OF AN EASEMENT
CONT.

10. The benefit of both legal and equitable easement passes to purchaser of the
dominant tenement same as a registered land.
Rules that apply;
1. Legal easements bind the whole world.
2. Equitable easements must be registered as a class D (iii) land charge under
LCA 1072 in order to bind puncher for money or its worth of the
servient tenement.
UNREGISTERED LAND

11. This is the right to enter someone's land and take produces from the land,
such as crops, fish, timber etc. this could be legal or equitable.
e.g entering the kitchen garden to obtain crops.
PROFIT Á PRENDRE

12. In approaching a property law exam;
First- look at the first and or second paragraph of the question deals with the
circumstances of the incident. E.g. what the transactions between both parties
were. (some what introduction).
Second- the second or sometimes third paragraph explains what has
happened after transactions and what could have triggered the circumstances.
EASEMENT EXAM QUESTION
APPROACH

13. First- highlight from the question who is lessening the land to whom. (identify
parties or two separate tenements or owners)
Second- look for the circumstance underlining the property. E.g. a track or
strip running through the property.
Third- look for use of such circumstance. E.g. the track is used to walk
through in order to get to the main road. (look in the question if the use of
that circumstance was expressed or implied in the agreement, lease or contract
e.t.c) note importantly however the use of it as if the person owns this
property.
Forth- examine if the track or circumstance is the only means of use or if
there's alternatives they can use instead. (this determines necessity for the
circumstance).
EASEMENT LAW APPROACH TO
ANSWERING QUESTIONS.

14. Fifth- look in the question if special circumstances was created allowing the
person to use the area or areas in question. E.g. when you and the landlord are
on good terms they allow you to use garage to keep you car but a fall out
caused them to lock it from you putting your car out side. i.e in a court of law
excessive use of someone's property is not allowed only under certain
considerations.
After Analyzing the question;
First you must identify that’s its an easement question, what are the purported
rights of easements or claims in rights.
Secondly must determine if the easement in the question is a valid easement
by applying the Re Ellenbourough park rule.
Thirdly discuss enforceability e.g if not properly registered or constituted in
law e.tc even with the requirements of a valid easement it will fail.
Fourthly if the circumstance isn't an easement you must identify what the
circumstance is and how to evaluate solving the problem. (aspects of your
conclusion).
EASEMENT LAW APPROACH TO
ANSWERING QUESTIONS. CONT.

15. Question 6
Andy was the registered owner and occupier of a house with an adjoining
commercial garage. In 2007, when Andy retired, he granted Barney a lease of
the garage for a period of five years. For many years there had been a sign
advertising the garage on the side wall of the house next to the main road,
however Andy removed it a few weeks after Barney took possession of the
premises. The forecourt of the garage was quite small and Andy had
occasionally parked cars awaiting repair on the drive of his house, but, when
Barney began doing so, Andy asked him to stop. In retaliation Barney told
Andy that he would no longer be allowed to cross the garage forecourt, which
separated the drive from the main road. This prevented Andy parking his car
on the drive although it was still possible to access the drive on foot via a
footpath that ran between the forecourt and the house. A few weeks later
Andy and Barney decided they were both being petty; Andy allowed Barney
to reinstate the advertising on the side of his house and said he could use the
drive occasionally in return for Andy being allowed to resume driving over the
forecourt. In 2012 the lease was renewed for another 5 years at which point
Barney told Andy he was, once again, no longer permitted to drive over the
forecourt. Andy consequently painted over the advertising sign and refused
to let Barney use his drive.
Discuss.
SAMPLE QUESTION

16. Hope you enjoyed this presentation feel free to comment, ask questions and
make suggestions.
THANK YOU