Easements 

An easement is a proprietary right to use another person's land in a particular way, or to prevent that person using it in a particular way. It is not a personal permission — a licence — and the distinction matters, because an easement binds successors in title while a licence binds only the parties. Whether a claimed right can exist as an easement at all is therefore the first question, and it is answered by a settled set of characteristics rather than by the parties' intention.

The four characteristics

Re Ellenborough Park [1956] Ch 131, consistently applied in Australia, requires four things.¹

There must be a dominant and a servient tenement. An easement cannot exist in gross, benefiting a person rather than land. A right granted to a utility provider unconnected to any land it owns is therefore not an easement at common law, though statute frequently creates such rights.

The easement must accommodate the dominant tenement. The right must benefit the land itself, not merely confer a personal or commercial advantage on its current owner. Proximity is relevant but not determinative; the test is whether the right makes the dominant land a better or more convenient property.

The tenements must be held by different persons. A person cannot have an easement over their own land, though a quasi-easement may exist in fact and become an easement on subdivision.

The right must be capable of forming the subject matter of a grant. It must be sufficiently definite, and not so extensive as to amount to exclusive possession, which would make it a lease or a transfer rather than an easement. A right to wander at will over land, or to store goods to the exclusion of the owner, will usually fail here.

Creation

Express grant or reservation is the ordinary route: a grant confers the easement on the purchaser, a reservation retains it for the vendor. Under Torrens, the easement is created on registration.

Implication arises on subdivision, and takes several forms. An easement of necessity is implied where land would otherwise be entirely inaccessible — the threshold is genuine necessity, not convenience. An easement of common intention is implied to give effect to a shared purpose for which the land was transferred. The rule in Wheeldon v Burrows (1879) 12 Ch D 31 implies to a purchaser those quasi-easements that were continuous and apparent, and reasonably necessary for the enjoyment of the land, and in use at the time of the grant.²

Prescription rests on long user as of right — openly, without force, and without permission — for the prescriptive period. It is of diminished importance under Torrens, and several jurisdictions have abolished or restricted it.

Statute provides an increasingly important route. Several jurisdictions empower a court to impose an easement over servient land where it is reasonably necessary for the effective use of the dominant land and can be granted consistently with the public interest, subject to compensation.

Easements and Torrens title

A registered easement takes effect according to the register and enjoys the protection of indefeasibility. The harder questions concern unregistered easements, and here the statutes differ: several jurisdictions make an omitted or misdescribed easement an express exception to indefeasibility, so that a registered proprietor takes subject to it despite the register's silence. The scope of that exception — whether it covers easements never recorded, or only those wrongly removed — is a matter on which the authorities and the statutes are not uniform, and the applicable provision must be read rather than assumed.

Extinguishment

An easement may be extinguished by express release, by unity of ownership and possession of both tenements, or by abandonment. Abandonment requires more than long disuse: an intention to give up the right permanently must be shown, and courts are slow to infer it. Statutory powers to modify or extinguish easements exist in most jurisdictions, typically where the easement is obsolete or impedes reasonable use without securing practical benefit.

The scope of the right

An easement confers a defined right, not a general licence. Disputes are usually about scope rather than existence, and three principles govern:

• The grant is construed by reference to its terms and to the circumstances at the date of grant, including the character of the dominant land at that time.
• The dominant owner may do what is reasonably necessary to use and maintain the easement, but must not impose an additional burden on the servient land.
• A change in the use of the dominant land does not extend the easement. Intensifying use within the same character is usually permissible; a change in character — from a single dwelling to a subdivision — may exceed the grant.

The servient owner retains every right not inconsistent with the easement, including the right to use the land subject to it and to build over a right of way provided access is not substantially impaired.

Remedies

The dominant owner's remedy for interference is an injunction, and damages in lieu or in addition. The interference must be substantial — a temporary or trivial obstruction is not actionable, and the question is whether the easement can still be used as conveniently as before.

Self-help by way of abatement exists but is disfavoured. Removing an obstruction without notice risks liability in trespass if the assessment of the right proves wrong.

Where the parties' rights are unclear, a declaration as to the scope of the easement is often the more useful remedy, and is commonly sought together with an injunction.

Applying this in a problem question

1. Ask first whether the right claimed can exist as an easement, applying the four characteristics in order and stating which is in doubt.
2. Distinguish a licence and, where the right approaches exclusive use, a lease.
3. Identify the route to creation, and if implication is in play, name which form and apply its own test rather than treating implication as a single doctrine.
4. Under Torrens, ask whether the easement is registered; if not, locate the statutory exception in the applicable Act rather than reasoning from general principle.
5. Consider extinguishment expressly if the facts include long disuse or a change of ownership.

Self-check

• Have I checked for a dominant tenement, rather than assuming a benefit to a person suffices?
• Have I asked whether the right amounts to exclusive possession?
• Have I named which form of implication applies and applied its specific test?
• Have I read the indefeasibility exception in the relevant statute rather than generalising?