Easements: Essential Characteristics
An easement is a right enjoyed over one piece of land (the servient tenement) for the benefit of another piece of land (the dominant tenement). The four essential characteristics were established in Re Ellenborough Park [1956] Ch 131:
(1) There must be a dominant and a servient tenement. An easement cannot exist "in gross" — it must benefit land, not just a person.
(2) The easement must accommodate the dominant tenement. It must benefit the land itself (not just the current owner personally) and the two plots must be sufficiently proximate.
(3) The dominant and servient tenements must be owned or occupied by different persons. You cannot have an easement over your own land (though note the exception for registered land under s.27(1) LRA 2002).
(4) The right must be capable of forming the subject matter of a grant. This means: there must be a capable grantor and grantee, the right must be sufficiently definite, and it must not be too wide or vague. A right to a general flow of air is too vague (Harris v De Pinna (1886)), but a right to air through a defined channel can be an easement.
Creation of Easements
Easements may be created by: express grant or reservation (in a deed), implied grant (by necessity, common intention, or the rule in Wheeldon v Burrows (1879) 12 Ch D 31), s.62 LPA 1925 (which converts certain precarious rights into legal easements on conveyance), and prescription (long use — typically 20 years under the Prescription Act 1832).
Wheeldon v Burrows implies an easement on the grant of part of the land where: (1) the right was continuous and apparent, (2) it was necessary for the reasonable enjoyment of the land granted, and (3) it was exercised by the common owner at the time of the grant.
Section 62 LPA 1925 operates on a conveyance of land to convert existing permissions or licences into legal easements. In Wright v Macadam [1949] 2 KB 744, a licence to use a coal shed was converted into an easement by s.62 on the grant of a new lease.
Restrictive Covenants
A restrictive covenant is a promise by one landowner (the covenantor) not to do something on their land for the benefit of neighbouring land (the covenantee's land). The key question is whether the burden and benefit of the covenant pass to successors in title.
Passing the burden (equity): Under the rule in Tulk v Moxhay (1848) 2 Ph 774, the burden of a restrictive covenant passes in equity to successors of the covenantor's land provided: (1) the covenant is negative in substance (it restricts the use of land), (2) it was made for the benefit of the covenantee's land, (3) the original parties intended the burden to run (s.79 LPA 1925 implies this), and (4) the successor had notice of the covenant (in registered land, it must be protected by a notice on the register).
Passing the benefit: The benefit may pass by annexation (express or statutory under s.78 LPA 1925 — Federated Homes v Mill Lodge Properties [1980] 1 WLR 594), assignment (express transfer with the land), or through a building scheme (where mutual covenants are imposed on all plots in a development).
Positive Covenants
The burden of a positive covenant (a promise to do something, such as maintain a fence) does not run with the land at law or in equity (Austerberry v Oldham Corporation (1885) 29 Ch D 750, affirmed by the House of Lords in Rhone v Stephens [1994] 2 AC 310).
This creates practical difficulties, particularly for freehold flats. Various devices have been developed to circumvent the rule, including: indemnity covenants (each successive owner covenants to indemnify the previous owner), Halsall v Brizell (the "benefit and burden" principle — if you take the benefit, you must accept the burden), long leases (leasehold covenants can be enforced under the Landlord and Tenant (Covenants) Act 1995), and estate rentcharges (s.2 Rentcharges Act 1977).
Key Cases
| Case | Key Principle |
|---|---|
| Re Ellenborough Park(1956) | Four essential characteristics of an easement |
| Wheeldon v Burrows(1879) | Implied grant of easements on sale of part |
| Tulk v Moxhay(1848) | Burden of restrictive covenants passes in equity |
| Federated Homes v Mill Lodge(1980) | s.78 LPA 1925 effects statutory annexation of benefit |
| Rhone v Stephens(1994) | Burden of positive covenants does not run with freehold land |
Exam Tips
Exam Tip
For covenant questions, always separate the analysis: (1) Does the burden pass to the covenantor's successor? (2) Does the benefit pass to the covenantee's successor? Both must be satisfied for the successor to enforce the covenant. Remember: only restrictive covenants can pass their burden in equity.
Common Mistake
Students often forget that the burden of positive covenants cannot run with freehold land. If the question involves a positive obligation (e.g., to repair a wall), the covenant cannot be enforced against a successor unless one of the workarounds applies (indemnity chain, Halsall v Brizell, or leasehold structure).