Easements
| Author | William Webster/Robert Weatherley |
| Pages | 1-8 |
INTRODUCTION
1.1 Easements confer rights for one landowner to make use of another’s land, in contrast to profits which is a right to take something from another’s land such as game, fish, turf or timber, or to restrictive covenants which is an agreement restrictive of the use of land for the benefit of other land. An easement must be annexed to other land of the proprietor of the right and cannot exist on its own
(i.e. ‘in gross’) whereas a profit can exist on its own. As a proprietary and not a personal right, the easement will pass with the land. The right is not one which entitles the holder of the right to the exclusive use of the land, and the owner still retains control and can use his land as he chooses subject to the scope of the easement.
ESSENTIALS OF AN EASEMENT
1.2 There are four requirements for an easement:
(a) There must be a dominant and servient tenement.
(b) An easement must accommodate the dominant land (i.e. it must be connected with its enjoyment and for its benefit).
(c) The dominant and servient owners must be different persons.
(d) The right over another’s land must be capable of forming the subject matter of a grant.
1.3 In the absence of a contrary intention, an expressly granted easement also confers certain ancillary rights incidental to the exercise of the easement. The case law defines these ancillary rights as comprising entitlements which are reasonably necessary for the enjoyment of the easement. In Moncrieff v Jamieson
1.4 In Moncrieff v Jamieson, the House of Lords also confirmed that an easement must be exercised reasonably and without undue interference with the
4 Restrictions on the Use of Land
servient owner’s enjoyment of his own land. Any use of the easement in excess of that which is reasonable is actionable as a trespass or nuisance. A servient owner may similarly be liable to an actionable nuisance, although damages are not awarded unless there has been a substantial interference with enjoyment, the primary remedy being that of an injunction.
THERE MUST BE A DOMINANT AND SERVIENT TENEMENT
1.5 This means that it must be possible to identify two parcels of land with the benefit of the easement being attached to the dominant land and the burden being on the servient land. The dominant land must be specified, or at least ascertainable, at the time of grant. In London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd,
EASEMENT MUST ACCOMMODATE THE DOMINANT LAND
1.6 The right must confer a benefit on the dominant land. The test is whether the right makes the dominant land a better and more convenient...
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