The Four Requirements for a Valid Easement — Re Ellenborough Park
An easement must satisfy all four requirements from Re Ellenborough Park [1956]: (a) dominant and servient tenement — the right benefits specific land (dominant tenement) and burdens other specific land (servient tenement); purely personal rights do not qualify; (b) the easement must accommodate and serve the dominant tenement — connected with the use and enjoyment of the land, not merely personally advantageous; (c) the tenements must not be owned and occupied by the same person at creation — unity of ownership and possession extinguishes an existing easement; (d) the right must be capable of forming the subject of a grant — sufficiently definite, not requiring the servient owner to spend money, not too vague. Common valid easements: rights of way (foot or vehicular), drainage rights, rights of support, rights of light, and rights to park. Rights that do not qualify: right to a view; right to receive wind; rights to general amenity.
Creation of Easements — Express, Implied, and Prescriptive
Express grant or reservation: most reliable method — created in a deed; registered easements over registered land must be completed by registration under LRA 2002 s.27 to operate as legal easements. Implied grant: Wheeldon v Burrows (1879) — all quasi-easements continuously and apparently used, and reasonably necessary for reasonable use of the land, pass on a conveyance of part; LPA 1925 s.62 — a conveyance automatically passes all rights and privileges enjoyed informally; sellers should exclude s.62 in the transfer deed where they wish to retain control over informal rights used by purchasers. Prescriptive easements: 20 years' continuous use as of right (nec vi, nec clam, nec precario) under common law, lost modern grant, or the Prescription Act 1832; rights of light: 20 years under s.3 Prescription Act 1832; blocked by registering a light obstruction notice at HMLR or physically obstructing before 20 years runs.
Rights of Way — Scope, Obstruction, and Tenant Rights
The scope of a right of way is determined by its express terms or by the circumstances of its creation. Vehicular vs pedestrian: construe from the grant and surrounding circumstances — intensification of use substantially beyond the scope may be challenged (Jelbert v Davis [1968]). Obstruction: erecting an unauthorised gate, parking vehicles on the way, or altering the surface constitutes actionable nuisance if it substantially interferes with enjoyment. Maintenance: the servient owner has no obligation to maintain a right of way (absent agreement) but must not actively obstruct it; the dominant owner can carry out repairs at their own expense. Tenants automatically take the benefit of all easements appurtenant to the demised premises — they can sue for obstruction without the landlord joining.
Restrictive Covenants and Extinguishment of Easements
Restrictive covenants run with freehold land under Tulk v Moxhay (1848) and bind successors in title if registered. They must be negative in substance; intended to run with the land; the covenantee must retain benefiting land; and they must be registered (notices on the charges register for registered land; Class D(ii) land charges for unregistered land). Discharge or modification: apply to the Upper Tribunal (Lands Chamber) under LPA 1925 s.84 — grounds include obsolescence, impeding reasonable use without benefit, or agreement by all entitled to enforce. For low-risk covenants, restrictive covenant indemnity insurance is faster. Extinguishment of easements: unity of ownership and possession permanently extinguishes an easement (no revival on re-separation); express release by deed; implied abandonment (requires clear evidence of permanent intention to abandon — non-use alone is never enough: Benn v Hardinge (1992)).