The K-Zone: Easement

An easement is a right that one property owner has over the land of another. Historically it seems that easements came into use as a method to allow landowners to sell parts of their land in a way that would be attractive to potential buyers. For example, If X sells a parcel of land to Y, and Y's land has no direct access to the highway, how can Y enforce a right of access to his new land? Of course, X and Y can enter into a contract to give effect to this requirement, but what if either X or Y sell their respective interests? How can a successor to Y (call him Z) enforce his right of access against X, even when X and Z have no contract? Easements are obligations that `run with the land', and are therefore attached to the Title, not the person. Technically, easements are a form of Servitude and therefore stop short of being rights of ownership. Now, if Z has from X a right to get to his (Z's) land across X's land, this clearly does not interfere with X's exclusive enjoyment of his land. However, suppose Z has an easement for storage of grain on X's land, it is much less clear that this is a servitude, rather than a title in its own right. In other words, it can sometimes be unclear whether a right is an easement or a form of ownership. The general position now seems to be that anything that gives exclusive rights of access or occupation cannot be an easement. So X could have an easement to park his car in Y's field, but he probably could not have an easement to park in Y's garage (because this would exclude Y).

Another complication is that some things that are conventionally classified as easements are actually more like covenants. This includes easements of light and of air, where the affected property owner is under an obligation not obstruct light and air from neighbouring properties.

While it would be possible to make an exhaustive list of all the rights that the courts have so far recognized as easements, it is not particular easy to derive general principles from this list. It is therefore difficult to define an easement, or specify exactly what is required for one to exist. However, in ReEllenboroughPark1955 the Court of Appeal gave some guidance as to the minimum conditions that must be satisfied.

There must be a DominantTenement and a ServientTenement. Note that it is the `tenement' (i.e. the title) that is affected, not the land in itself. Thus a tenant may have an easement against his landlord, even though the land is the same. However...
... an easement is extinguished if the dominant and servient tenements ever come into the same ownership. A person can't be subject to an easement against himself (but see QuasiEasement).
The easement must `accomodate' (that is, benefit) the dominant tenement. That is, it must benefit the land, not merely the owner for the time beingi (TupperVHill1863).
The easement must `lie in grant'. That is, it must be capable of being granted by a person or body who is legally competent to grant it.

In addition, there are other criteria that can be extracted from some, but not all, cases on easements.

It is often said that the courts will be reluctant to recognize as an easement anything that requires the servient landowner to expend money. A possible exception (but this is not entirely clear) is the right to have the servient landowner maintain a fence.
The easement must not have the effect of excluding the servient landowner completely from the land (See, for example, PlattVCrouch2003).
Where the easement is one that is claimed to arise by prescription (see below), it must have been exercised by right, not by permission.

Some examples of rights that have so far been recognized as easements include: rights of access, rights of light, rights of water, rights or storage, rights of air, and rights of support. More recently, there has been some discussion of whether the right to park a car can be an easement. The problem with parking is that it can deprive the owner of the servient land of the right of access to that land - a parked car is stationary and occupies space. So it seems that the right to use a parking space cannot be an easement (it might, perhaps be a lease or a licence), while the right to park in a field can.

Easements come into existence in a number of ways:

by grant, that is, an explict creation of the easement by the owner of the servient property;
by reservation, that is, where the buyer and seller of a piece of land agree that the seller should retain some limited right over the land he is selling;
by necessary implication, where a court decides that an easement must be implied into a transfer of title, otherwise it would be ineffectice (this applies in particular to rights of access);
by implied grant, by the rule in WheeldonVBurrows1879 or the action of s.62 of the LPA1925 (see PlattVCrouch2003, WrightVMacadam1949);
by prescription, where a long-established custom is seen as a right (e.g., rights of way).

Easements can be legal or equitable. An easement which does not comply with the requirements for legality may be recognized as an equitable easement, if the courts would be prepared to order the grantor to complete the legal formalities. To be legal, an easement must be for a fixed period, or forever (s.1(2) LPA 1925). Unless the claimed easment arises by prescription, it must be granted by deed to be effective in law. Whether an easement is legal or equitable is of great importance in determining whether it can be enforced against a subsequent owner of the servient land. As with all equitable interests, an equitable easement is more precarious. Under the 1925 legislation, a legal easement is binding (as an OverridingInterest) on registered land. It may also be the case that an equitable easement is binding (see CelsteelVAltonHouse1986), but the LandRegistrationAct2002 clearly does not provide for this. In fact, under the LRA 2002, a legal easement that is expressly granted will not be overriding either. This follows from the logic that an easement will only become legal (rather than equitable) when it is entered on the register. Until then, it is only equitable. But if the easement is entered on the register, it is no longer overriding (nor need it be).

Technically, an easement does not give its beneficiary to take anything from the land; such a right is called a `profit' (see: Profit).

LandAndPropertyLaw