Easements

• What are easements?

  • A right that reflects the communal value and character of property and that denial of absolute ownership of land because it is a right
  • Contain both negative and positive characteristics
  • Capable of binding third parties
• What are the characteristics of easements?

  • Dominant and servient tenement
  • Accommodates the dominant tenement
  • Different dominant and servient owners
  • Subject matter of grant
• What are the characteristics of a subject matter of a grant?

  • Capable grantor
  • Capable grantee
  • Sufficiently definite - cannot be overly broad - Hunter v Canary Wharf 1997
  • Within general nature of rights traditionally recognised as easements - Phipps v Pears 1965
  • Question of extent
• How are eaesments created?

  • Express creation
  • Implied creation - of necessity, by common intention
• Detail express creation of easements

  • Usually contained within a deed at the time of transfer of property
  • Must be created out of a legal estate and execution by deed
• Implied creation by common intention

  • An easement can be implied in order to give effect to the common intention of both parties
  • Wong v Beaumont Property Trust Ltd 1965
  • Wheeldon v Burrows established an easement will be implied when land owned is divided and a plot sold to another
• What were the details of Wong v Beaumont Property Trust Ltd 1965


  • Wong had a restaurant in the basement and Beaumont had a lease for the apartment upstairs
  • The lease which predated both required that the restaurant comply with public health rules
  • Wong had to instal a vent system over B's premises
  • Court allowed it
• What criteria is necessary for the Wheeldon rule to apply?

  • Continous and apparent use
  • Reasonably necessary for enjoyment
  • Exercised prior to and at date of transfer
• What are the requirements for prescriptive acquisition of an easement?

  • Continuous user
  • Over a 20 year period
  • User of "as of right" - without force, permission and secrecy
• What are the grounds for a prescriptive acquisition?

  • Time immemorial - unbroken continuous use of land
  • Prescription Act 1832
  • Lost modern grant - use of as of right, express grant made and then lost
• What has been the impact of the Law Commission May 2021?

  • Produced 243 law reports
  • 155 implemented
  • 31 rejected
  • 18 awaiting implementation
• What recommendations have been made for law regarding easements?

  • Abolition of the 'ouster principle'
  • Simplifying implied easements
  • Introduction of a single method of prescription
  • Limiting the effect of the Law of Property Act 1925