Download Understanding Easements and more Slides Law in PDF only on Docsity! Easements An easement is a proprietary interest enjoyed by the owner of one lot (dominant tenement) which burdens another lot (servient tenement). An easement allows the owner of the DT to make a particular use of another person’s property or (more rarely) restrict the use of land in which another person has a freehold or leasehold interest in a particular way. Unlike leases, easements do not confer possession. An easement is a property interest if properly construed. It is annexed to the land, runs with the land and will keep going even if the original parties have ceased owning the land. CHARACTERISTICS OF AN EASEMENT – Re Ellenborough Park 1. THERE MUST BE A DOMINANT AND SERVIENT TENEMENT DT = land benefited by easement (accommodated by easement) ST = land burdened by easement (subject to easement) AN easement cannot be unconnected with a DT (law does not recognise ‘easements in gross’ In Grapes v Fish, right of way was created in a document but there was nothing identifying the DT – easement in gross, no easement Cf: in Gas and Fuel Corporation v Barba, provision in document for details of a DT to be specified but hadn’t been filled in. Reference to DT was sufficient, court allowed extrinsic evidence to prove what it was If the right is granted to someone who does not own land, no DT, only a licence For example: “I give you the right to take a short cut across my property” (licence) cf. “I give my neighbour the right to take a short cut across my property” (easement) 2. THE EASEMENT MUST BE FOR THE BENEFIT OF THE DOMINANT TENEMENT Question of fact: Is the right connected with the normal enjoyment of the DT? (Ellenborough) It must be reasonably necessary to facilitate the convenience and better enjoyment of the DT as land - as opposed to the personal benefit of the owner (Clos Farming Estate v Easton) DT and ST need not be adjoining, but they do need to be close enough for the DT to benefit from the ST (Re Ellenborough – ‘in close proximity) In Re Ellenborough, the DT was used for residential purposes and the right was full enjoyment of a nearby park. Evershed MR held that a garden ‘undoubtedly’ enhances, and is connected with, the normal enjoyment of the house to which it belongs and thus so too does a park which is the ‘communal garden’ for nearby houses In Re Ellenborough, the easement affecting the value of the DT went some way to proving In Ackroyd v Smith right did not amount to an easement as the words ‘to pass and repass for all services’ was too broad, needed something that anchored the enjoyment of the DT, regarded as contractual licence between 2 original parties and not enforceable against successive entitlements 3. THE DOMINANT AND SERVIENT TENEMENTS MUST NOT BE OWNED AND OCCUPIED BY THE SAME PERSON Part of broader rationale that you cannot acquire rights against yourself Requirement can be satisfied if both DT and ST is owned by the same person but not occupied by the same person Exception: subdivision and consolidation