Easements in English law

Easements in English law are rights within English land law that one individual has over another's land. Rights recognised as easements most frequently include rights of way or light, and extend as far as the right to use a neighbour's lavatory, or to park a car on their land. The necessity of easements can be recognised by the Law Commission's recent findings that there are easements over at least 65% of registered freehold titles. In some circumstances for example, it may be impossible for one land owner to access a public highway without an easement of a right of way. The creation of easements is usually done expressly by deed, but easements may be implied where they are necessary, or would be reasonably expected to be held by a land owner, an approach which is not altogether uncontroversial, and has been the subject of recent reform proposals.

Whilst an easement is essentially a right over another's land, any right claimed as an easement must satisfy the common law definition, outlined in the case of Re Ellenborough Park. Here, Danckwerts J laid out essential characteristics of an easement:

The first requirement – that there must be two distinct plots of land affected – is central to the definition of an easement. A right of way granted to an individual is granted in their capacity as a land owner; if a right of way is granted to an individual who is not a land owner, it is merely a license.

Next, it must be shown that the right is connected with the enjoyment of the dominant tenement in some way. It is important to this end that the right must benefit an individual in their capacity as a land owner, and not merely form a personal right. For example, it has been judicially stated that a right of way over a plot of land in Northumberland to an estate in Kent would not form the requisite benefit, the proximity of the two pieces of land being too remote. It was recognised in Re Ellenborough Park however that an easement need not be over an adjacent property, though there must clearly be some reasonable connection in which the dominant tenement can be benefitted.

An easement can not be recognised where it the dominant and servient tenement are under common ownership. However, rights may be recognised as 'quasi-easements', which can then be implied as full easements upon the conveyance of the land in question.

The most problematic characteristic of an easement is that it must be capable of forming a grant by deed. The right must therefore be certain and definite in its purpose, and more importantly, that the courts are willing to recognise it as a right capable of being an easement. Many claimed rights fail this last criterion, for example, rights which require positive action by the owner of a servient tenement are unlikely to be granted, as are negative rights, which restrict the use of land. Rights which are excessive in nature are equally unlikely to be upheld. In Copeland v Greenhalf a claim to store unlimited vehicles on a neighbour's land failed, with the interference and right claimed being too great to be allowed as an easement.

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