In considering easements, you should always consider whether the activity is capable of being an easement, how the easement has arisen, and whether it has been lost by abandonment or overuse.

An easement is the right of one landowner over the land of another. The owner of the dominant tenement has the right to carry out some activity on or derive some benefit from the land of the servient tenement. Note that there must always be a dominant and servient tenement. An easement is different from a local right of way where villagers, or the general public, have a right to traverse someone’s land.

The easement must accommodate the dominant tenement, which means that it must make the property more convenient to use. It cannot simply be a personal convenience, but rather one that any landowner could potentially enjoy. The right to erect an advertisement on the servient tenement is considered personal unless the dominant tenement has long been in use as a commercial property.

Note that the dominant and servient tenements must be owned or occupied by different people. A person cannot acquire an easement against himself.

The activity in question must be capable of forming the subject matter of a grant. There is an easement of light, for example, but not an easement of privacy or view. In other words, the owner of the dominant tenement can issue an injunction preventing the servient owner from erecting a structure to block his light, but he cannot prevent him from blocking his view.

The right to park over a wide area may be an easement, but not the right to park in a single defined space, as its use would exclude the servient owner from his own property.

The categories of easements are fairly well established, and, while not closed, only expand slowly.

In answering questions on easements, explain the different methods of creation and test the particular activity against each category and subcategory.

Statutes may provide for drainage or major utility pipelines over private lands, usually with notice to the owner.

The easement may be expressed in a deed. It may be form part of a larger conveyance, eg: “V conveys Black Acre to P reserving the right for his utility lines to pass across Black Acre” (express reservation), or “V conveys Black Acre to P granting him the right to use the right of way over White Acre” (express grant).

The easement may also stand alone. One neighbour may simply (probably in exchange for money or some other benefit) grant another an easement over his land.

When there is no other access to a parcel of land, a right of way may be implied over an adjoining parcel of land. This only occurs where there is absolutely no access. Where there is some form of access, even if it is inconvenient (such as, over a river or a cliff), no easement of necessity will be implied.[1]

The rule only applies where the properties were previously owned and occupied by the same person. Where a landowner currently used the remainder of his land (servient) so as to facilitate the convenience of a particular portion (dominant) he is considered to have a quasi-easement. It is not an actual easement since one cannot acquire an easement against oneself.

When the quasi-dominant parcel is sold, the quasi-easements become full easements which the new owner can enjoy. Hence, if the landowner previously entered Plot A by driving over his other plot, Plot B, then the new purchase of Plot A has an easement to drive over Plot B.

For the rule to apply, the easement must be apparent (visible from the servient tenement) and continuous (always open without need for deliberate action, e.g., a drain). Activities which require deliberate action do not fall under Wheeldon v Burrowes, except that a well-worn track or made-road can become an easement under the rule.

Note that the rule only applies to those activities which benefit the property itself to make it more convenient. It does not apply to mere personal advantages.

Section 62 of the Property Act of 1925 only applies where the dominant and servient tenement were previously in separate occupation. Again the rule only applies to those activities which are continuous and apparent, or to a road.

Where the occupant has been granted quasi-easements or simply rights over the servient tenement, these rights become full-blown easements whenever the servient tenement is conveyed. The conveyance may be a new lease, sale, assent, or mortgage.

The Act has been sharply criticised as being too powerful. However, it does not apply where a contrary intention can be shown, and the prudent landowner will periodically cancel all licences, especially before signing a new conveyance.

Unlike limitation which extinguishes estates (such as the paper-owner’s estate), prescription can create new rights which did not previously exist. The fundamental requirement is that the dominant tenement owner must be able to show that he was using the easement for the continuous 20-year period immediately before.

Once the 20-year use has been proven, the Court may make the presumption that the property has been used since “time immemorial”, defined as being since the 1189. This presumption may be rebutted by proof that the property could not have been in use since then.

Alternatively, once the 20-year use has been proved, the Court may make the presumption that there was a recent grant of an easement which no-one now recalls accurately. This presumption may be rebutted by proof that no-one was capable of making the grant.

The Prescription Act provides that where an easement has been enjoyed as of right for 20 years without interruption it cannot be defeated by proof that use began after 1189. Furthermore, an easement which has been enjoyed for 40 years cannot be defeated at all, except by proof that it was enjoyed by written consent.

“Interruption” means a hostile obstruction or a natural blockage which lasts more than a year.

“As of right” means peacefully and openly (nec vi, nec clam, nec precario) by a fee simple owner.

An easement of light becomes absolute after 20 years, but (unlike the other rules), this rule does not bind the Crown.

Once the easement has been established, how can it be ended? In other words, at what stage can the owner of the servient tenement exclude the dominant tenement from his land?

Easements can be released expressly by deed. An informal release may also suffice, if the servient owner can prove if he has spent money in detrimental reliance on the representations made by the dominant owner.

There can also be an implied release although this is hard to prove. Mere abandonment does not suffice. An alteration to the dominant tenement which makes the enjoyment of the easement impossible or unnecessary may show an intent to abandon, but such is not always the case.

The Easement ends where the dominant and servient tenements come into the fee simple ownership and possession of the same person. Mere unity of possession is not sufficient, and mere unity of ownership does not suffice until there is also unity of possession.

What happens when the use of an easement increases drastically? In general, excessive use does not bring an easement to an end. However, the servient owner may issue an injunction and has the right to block the easement completely until lawful use is resumed.

Excessive use is usually found where there has been a radical change in the nature or character of the dominant property, as compared to a mere intensification of its use. If the development on the dominant land will lead to an undue burden on the servient tenement, then the easement may be restricted. In Giles v County Building Constructors (1971) 22 P & CR 978, the Court held that the change of the dominant land from two houses to an apartment block did not constitute a radical change of use. On the other hand, in McAdams Homes Ltd v Robinson [2004] EWCA Civ 214, the Court held that the change from a bakery to residential units constituted a radical change.

[1] Word to the wise: in selling/renting parcels of land, always be sure to grant or reserve access, especially for subplots. I have a case now where the larger parcel has access, but it is divided into four house spots and the two inner spots do not have direct access – the tenants must travel over a neighbour’s land. Due to statutory requirements (Freehold Tenantry Purchase Act), the landlord must now sell the tenants their plots. We are in Court trying to figure out how to give them access...