Learning Outcomes
This article outlines the essential characteristics of easements and related principles, including:
- The distinction between easements, licences, and profits à prendre; the proprietary, land-related nature of easements; the “no easement in gross” rule and why correct classification matters for enforceability against successors.
- The “accommodation” requirement: proximity between dominant and servient tenements; land-related versus merely personal benefits (including business-linked advantages); the modern treatment of recreational rights following Regency Villas and how these authorities guide exam problem-solving.
- The need for diversity of ownership or occupation; the effects of common ownership or occupation on easements (creation, suspension, and extinguishment), particularly in landlord–tenant situations and where merger of estates occurs.
- When a right is capable of forming the subject matter of a grant: certainty of the right; competent grantor and grantee; the prohibition on positive burdens; the ouster principle; recognised categories of easements (especially negative easements) and modern limits on creating new ones.
- Typical rights that succeed or fail as easements (e.g., defined rights of way, light, air, support, storage, and parking versus vague rights to a “view” or general amenity), and their interaction with methods of creation (express, implied, prescription) and registration rules in registered and unregistered land.
SQE1 Syllabus
For SQE1, you are required to understand the nature of easements and apply the criteria that define an easement to practical scenarios to determine whether a right benefits a dominant tenement, burdens a servient tenement, and satisfies the essential tests, with a focus on the following syllabus points:
- The requirement for both a dominant and a servient tenement.
- How an easement must 'accommodate' the dominant tenement.
- The necessity for separate ownership or occupation of the dominant and servient tenements.
- The criteria determining if a right is 'capable of forming the subject matter of a grant'.
- Proximity and the need for the dominant and servient land to be sufficiently near for any benefit to be real.
- The distinction between personal advantages and land-related benefits (including business use).
- The ouster principle: why a claimed right must not amount to exclusive possession or control of the servient land.
- Why new negative easements are not generally recognised and the accepted categories of negative easements (light, air, support).
- How definable channels/apertures matter (e.g., light through a window, air through a flue), and why vague or indeterminate rights fail.
- Practical consequences of creation and protection: express versus implied/prescriptive easements, and how registration and overriding rules affect enforceability.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
-
Which case established the four essential characteristics of an easement?
- Street v Mountford
- Tulk v Moxhay
- Re Ellenborough Park
- Wheeldon v Burrows
-
A right can qualify as an easement only if:
- It is granted for a period exceeding 21 years.
- It benefits the owner of the dominant tenement personally, regardless of land ownership.
- The dominant and servient tenements are owned and occupied by the same person.
- It benefits the dominant tenement itself.
-
Which of the following is LEAST likely to be capable of forming the subject matter of a grant as an easement?
- A right of way across a defined path.
- A right to receive light through a specific window.
- A right to a good view from the dominant tenement.
- A right to run pipes under the servient land.
Introduction
Easements are proprietary rights that one landowner can exercise over the land of another. Unlike a licence, which is merely personal permission, an easement attaches to the land itself and can bind future owners. For a right to be recognised as a valid easement, it must satisfy four essential characteristics laid down in the case of Re Ellenborough Park [1956] Ch 131. This article examines each of these characteristics, which are key for determining the enforceability of such rights in property law scenarios encountered in SQE1.
Easements are among the interests capable of being legal under s 1(2)(a) Law of Property Act (LPA) 1925 and may be created expressly (typically by deed), impliedly (e.g., by necessity, common intention, the rule in Wheeldon v Burrows, or s 62 LPA 1925), or by prescription (long use). In registered land, the manner of creation affects how the burden is protected: express legal easements over registered land must be completed by registration (LRA 2002, s 27(2)(d)), whereas certain implied and prescriptive legal easements may override dispositions under Sch 3, para 3 LRA 2002 if discoverable or recently used. Equitable easements will generally require notice on the register to bind a purchaser (LRA 2002, s 32 and s 29). In unregistered land, legal easements bind the world, while equitable easements created after 1 January 1926 must be protected as a Land Charge (Class D(iii)) to bind a purchaser for value.
Key Term: Easement
A proprietary right benefiting one parcel of land (dominant tenement) and exercised over another (servient tenement), capable of binding successors in title.
The Four Essential Characteristics of an Easement
The criteria established in Re Ellenborough Park provide the framework for identifying whether a right over land can qualify as an easement. All four conditions must be met.
1. There Must Be a Dominant and a Servient Tenement
An easement cannot exist independently ('in gross'); it must be linked to land. The right must benefit an identified dominant tenement and be exercisable over an identified servient tenement. Both tenements must be identifiable at the time the easement is created.
Key Term: Dominant Tenement
The parcel of land that benefits from the easement.Key Term: Servient Tenement
The parcel of land that is burdened by the easement (i.e., over which the right is exercised).
This requirement ensures that the right attaches to land—not persons—and that it is capable of binding successors. Whereas profits à prendre can exist in gross (a right to take something from another’s land without attaching to a dominant tenement), easements cannot.
Courts will expect the dominant and servient land to be sufficiently proximate that the claimed benefit is real. Although direct adjacency is not essential, a right over land far away from the dominant parcel will not satisfy the easement framework in practice.
Key Term: Easement in Gross
A supposed easement unattached to a dominant tenement; not recognised in English law (profits may exist in gross, but easements cannot).
Worked Example 1.1
Anya owns Plot A and grants her neighbour, Ben, who owns the adjacent Plot B, the right to walk across a path on Plot A to reach the main road. Which plot is the dominant tenement and which is the servient tenement?
Answer:
Plot B is the dominant tenement because it benefits from the right of way. Plot A is the servient tenement because it is burdened by the right of way being exercised over it.
Worked Example 1.2
A developer attempts to create a “perpetual right for the public to roam” over private woodland. No particular parcel of land is identified as benefiting. Does this qualify as an easement?
Answer:
No. There is no identified dominant tenement. The attempted grant is an easement “in gross,” which English law does not recognise. The arrangement could be a licence (or a public right of way if established via statutory processes), but it is not an easement.
2. The Easement Must Accommodate the Dominant Tenement
The right must benefit the dominant tenement itself, rather than just conferring a personal advantage on the current owner. The easement must be connected with the normal use and enjoyment of the dominant land and increase its utility or value.
Key Term: Accommodation
The requirement that an easement must benefit the dominant land itself, improving its use or value, and not merely provide a personal advantage to the landowner.
Key points the courts consider include:
- Proximity: The dominant and servient tenements must be sufficiently near for the claimed benefit to be real. A right over land in one town will not ordinarily “accommodate” land in a distant town.
- Land-related benefit versus personal benefit: Rights aiding a particular trade on the dominant land may qualify if they improve the land’s utility (e.g., a right to hang a sign benefiting a business carried on at the dominant premises, as in Moody v Steggles). In contrast, a purported exclusive right to put pleasure boats on a canal for profit failed because it benefited a business venture rather than the land itself (Hill v Tupper).
- Recreational use: Historically, purely recreational rights struggled to qualify. However, the Supreme Court in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] accepted that rights to use sporting and recreational facilities (such as a swimming pool, tennis courts, golf course) can accommodate dominant land used for timeshares. The court recognised modern concepts of land utility and that such facilities can demonstrably improve the use and amenity of the timeshare land.
The purpose is to ensure the claimed advantage increases the land’s convenience or utility. Land-related benefits can be business-linked if the right is anchored to the land’s use rather than a free-floating commercial opportunity.
The “accommodation” requirement also interacts with change of use and intensification. An existing easement may be used in line with the dominant land’s changing use, but not so as to impose a substantially different burden on the servient land (e.g., a right of way cannot be enlarged into a highway for a caravan park if that goes beyond reasonable increase in use: compare Jelbert v Davis).
Worked Example 1.3
Sam runs a café from the dominant premises. He claims a right to affix a projecting sign on a neighbouring wall (servient land) directing customers to his café. Does that right accommodate his dominant land?
Answer:
Likely yes. A right to erect a sign connected with a business carried on at the dominant premises can improve the use and value of the land itself (as in Moody v Steggles), provided the right is sufficiently defined and does not amount to exclusive use of the servient wall.
3. Dominant and Servient Tenements Must Be Owned or Occupied by Different Persons
A person cannot have an easement over their own land. The dominant and servient tenements must be in separate ownership or, at the very least, separate occupation. If ownership and occupation of both tenements come into the hands of the same person, the easement is extinguished by common ownership and occupation (sometimes referred to as “consolidation of seisin”). If only the occupation unites (for example, the freehold owner of the servient tenement takes a lease of the dominant tenement), the right may be suspended while the common occupation lasts and may revive when diversity returns.
Key Term: Consolidation of Seisin
Common ownership and occupation of the dominant and servient tenements in the same person. It extinguishes an easement because one cannot have an easement against oneself.
Not every change triggers extinguishment. In particular, there can be complex situations involving merger of leasehold interests: a long lease of the dominant land might merge with the freehold reversion, potentially raising questions about survival or extinguishment of rights. The general principle remains that when the same person owns and occupies both the dominant and servient land, the easement cannot continue.
Key Term: Merger
The process by which one estate (e.g., a lease) unites with a superior estate (e.g., the freehold), potentially affecting associated rights such as easements.
Revision Tip
Remember that a landlord can grant an easement over their retained land for the benefit of their tenant's leased land (and vice versa). Although the landlord owns the freehold of both, the occupation is diverse. A mere licensee of land (without an estate) cannot be the grantee of an easement because easements attach to estates in land.
Worked Example 1.4
A freeholder of Large House (servient) grants a right of way over a path to the tenant of Garden Flat (dominant). Later, the freeholder acquires Garden Flat’s leasehold estate and occupies both properties. What happens to the right of way?
Answer:
While the same person owns and occupies both dominant and servient tenements, the easement cannot subsist against that person, and is extinguished if common ownership and occupation occur. If only occupation unites (e.g., by taking a temporary lease) the right may be suspended during the period of common occupation and revive afterwards.
4. The Right Must Be Capable of Forming the Subject Matter of a Grant
This requirement means the right must be sufficiently definite and capable of being granted by deed, even if created informally (e.g., by implication or prescription). Courts ask whether the right is certain, capable of grant by someone competent, and of a type that sits within the nature of easements without imposing impermissible burdens or amounting to occupation.
This involves several sub-criteria:
- Capable grantor and grantee: There must be legally competent parties capable of granting and receiving the easement. The grantee must hold an estate in the dominant land to which the right can attach.
- Sufficient certainty: The nature and extent of the right must be clear and definable. Vague rights such as “a right to a good view” (William Aldred’s Case) or a general right to a flow of air (Harris v De Pinna) are typically not allowed. By contrast:
- A right to light must relate to a defined aperture (e.g., a window) and the infringement is assessed against what is reasonably sufficient for ordinary purposes having regard to the property’s character and locality (Colls v Home and Colonial Stores).
- A right to air must be through a defined channel or flue (Wong v Beaumont).
- No positive burden on servient owner: Generally, an easement must not require the servient owner to spend money or take positive action beyond passive sufferance (e.g., allowing passage). The servient owner is not obliged to maintain the subject matter of the easement. Notable exceptions are rare (e.g., the anomalous fencing easement in Crow v Wood, typically limited to rural contexts where stockproof boundaries are essential). Complex scenarios exist: in Rance v Elvin, a water supply arrangement did not fail merely because the servient owner paid the bill; reimbursement arrangements can prevent the imposition of a true positive burden on the servient land.
- Not amounting to exclusive possession (ouster principle): The right must not be so extensive as to amount to joint occupation or substantially deprive the servient owner of possession or control over their land. This frequently arises with storage or parking claims:
- Storage: In Wright v Macadam, a right to store coal in a shed was accepted as an easement. By contrast, claims that effectively fill or occupy a confined space can fail (Grigsby v Melville; Copeland v Greenhalf).
- Parking: The courts assess whether the servient owner retains reasonable use or control. In Batchelor v Marlow, weekday parking of six cars occupying all the land left the servient owner with “no reasonable use” and the right failed. The Privy Council in Moncrieff v Jamieson suggested focus should be on whether the servient owner retains possession and control, even if practical exclusive use occurs, but Batchelor remains binding Court of Appeal authority in England and Wales. Outcomes depend heavily on the facts, including area, duration, and residual control.
- Within the general nature of rights recognised as easements: Courts are cautious about recognising entirely new types of easements, especially negative easements (which restrict the servient owner’s use of their own land), because they can unduly hinder development. There is no easement for TV reception (Hunter v Canary Wharf). The recognised categories of negative easements (light, air through defined apertures/channels, and support) are generally considered closed. However, new positive easements may be recognised if they meet the essential criteria (for example, recreational/sporting facilities in Regency Villas). The Supreme Court has also acknowledged that longstanding activity can, in principle, support an easement to create noise via prescription on appropriate facts (Coventry v Lawrence), though such claims are fact-sensitive and uncommon.
Key Term: Ouster Principle
The idea that a claimed right must not grant such extensive use or control of the servient land that it amounts to exclusive possession or joint occupation. Excessive storage or parking claims often fail on this ground.Key Term: Negative Easement
A right that restricts what the servient owner may do on their land (e.g., rights of light, air through defined apertures/channels, or support). Courts treat the list of negative easements as closed and are reluctant to recognise new ones.
Practical creation and protection points
Even when a right satisfies the Ellenborough Park criteria, it must be created and protected correctly to bind successors:
- Express legal easements over registered titles must be completed by registration (LRA 2002, s 27(2)(d)); otherwise, they operate only in equity.
- Implied and prescriptive legal easements can bind as overriding interests under Sch 3, para 3 LRA 2002 if obvious on inspection, actually known to the purchaser, or exercised in the year before the transfer.
- Equitable easements in registered land generally require a notice to bind a purchaser (LRA 2002, s 32, s 29).
- In unregistered land, legal easements bind automatically; equitable easements created after 1925 must be registered as a Land Charge (Class D(iii)) to bind a purchaser for value (LCA 1972, s 2 and s 4(6)).
Worked Example 1.5
Leo owns a large field behind Maria’s house. Maria grants Leo permission orally to store his tractor in her large, unused barn when he is not using it. Leo has done this regularly for two years. Maria now wants to use the barn herself and tells Leo he can no longer store the tractor there. Leo claims he has an easement of storage. Does Leo have a valid easement?
Answer:
It is unlikely Leo has an easement. While a right of storage can exist as an easement (Wright v Macadam), several issues arise here. First, the right was granted orally, lacking the formality required for an express legal easement (a deed). It might potentially be an equitable easement if there was a specifically enforceable written contract, which is absent. Second, the right might be too extensive if storing the tractor effectively prevents Maria from using her barn (the ouster principle). Third, Leo’s use was based on Maria’s permission, which suggests a licence rather than a right exercised 'as of right', which is necessary for prescription (though the 20-year period is not met anyway). Leo likely only had a bare licence, which Maria can revoke.
Worked Example 1.6
A small paved area (servient land) outside an office block has room for six cars. The owner of a neighbouring building (dominant land) claims an easement to park six vehicles there from 8.30am to 6pm Monday to Friday. On the facts, the servient owner has no remaining practical use of the area during these times. Is the right capable of forming the subject matter of a grant?
Answer:
Likely no on these facts. In Batchelor v Marlow, a similar arrangement failed: parking that left the servient owner with “no reasonable use” of the land amounted to an impermissible ouster. Although the Privy Council in Moncrieff v Jamieson suggested the test should focus on retention of possession and control, Batchelor remains binding Court of Appeal authority, and outcomes are fact-specific. If the servient owner retained meaningful control or alternative use (for example, ability to build above or below, or if parking was less intensive or shared), a parking easement might succeed.
Exam Warning
Be careful not to confuse easements with licences (personal permissions) or profits à prendre (rights to take something natural from another's land). Only rights satisfying all four Re Ellenborough Park criteria can be easements. Licences do not bind successors; profits may exist in gross, but easements cannot.
Key Point Checklist
This article has covered the following key knowledge points:
- An easement is a proprietary right enjoyed by a dominant tenement over a servient tenement.
- The four essential characteristics identified in Re Ellenborough Park must be present for a right to be an easement:
- There must be a dominant and a servient tenement (no easements in gross).
- The easement must accommodate the dominant tenement (benefit the land).
- The dominant and servient tenements must be owned or occupied by different persons (consolidation of seisin extinguishes easements; common occupation may suspend).
- The right must be capable of forming the subject matter of a grant (be sufficiently certain, not impose positive burdens, not amount to ouster).
- Proximity matters: the servient land must be sufficiently near the dominant land for any claimed benefit to be real.
- Business-related rights may qualify if tied to the land’s use (e.g., signage) but fail if merely personal/commercial (e.g., exclusive boating where it does not benefit the land).
- Recreational/sporting easements may satisfy “accommodation” in modern contexts (as in Regency Villas) where they improve land utility.
- The ouster principle limits storage and parking claims that amount to exclusive possession or eliminate reasonable use by the servient owner.
- Courts treat new negative easements with great caution: only light, air through defined channels/apertures, and support are recognised categories; there is no easement for TV reception (Hunter v Canary Wharf).
- Creation and protection affect enforceability:
- Express legal easements over registered titles must be registered (LRA 2002, s 27(2)(d)).
- Certain implied/prescriptive legal easements can override dispositions (Sch 3, para 3 LRA 2002) if discoverable/used recently.
- Equitable easements require notice (registered land) or Land Charges registration (unregistered land) to bind purchasers for value.
Key Terms and Concepts
- Dominant Tenement
- Servient Tenement
- Accommodation
- Easement
- Easement in Gross
- Consolidation of Seisin
- Merger
- Ouster Principle
- Negative Easement