Land 3

Question 1

What is an easement?

Answer 1

An easement is a right for one landowner to make use of another parcel of land for the benefit of their own land.

Question 2

Are easements capable of being legal?

Answer 2

Yes but only if they meet the requirements of s1(2)(a) Law of Property Act.

To be capable of being legal, it must be granted for either:
- an estate in fee simple absolute in possession (freehold), or
- a term of years absolute (leasehold) ie for a fixed ascertainable duration.

An easement created for an uncertain duration is not capable of being legal and will exist in equity only.

Question 3

Formalities for a legal easement

Answer 3

A deed is required to make a legal easement.
The deed must meet the requirements in s1(1) LP (MP) A 1989.

However, legal easements can be created without the formality of a deed.

If an agreement for an easement is entered into which complies with s2 1989 Act, this creates a contract for an easement which exists in equity following Walsh v Lonsdale.

Question 4

Test for an easement in Re Ellenborough Park

Answer 4

1. there must be a dominant and servient tenement
2. the easement must accommodate the dominant tenement
3. the dominant and servient tenement must not be both owned and occupied by the same person
4. the easement must be capable of forming the subject matter of the grant.

An easement cannot exist ‘in gross’ - meaning there is only a servient tenement and not a dominant tenement.
Any attempt to create an easement without an identifiable dominant tenement will create a licence only. However, a profit can exist in gross.