Chapter 12 Key facts checklists

Easements and profits

An easement gives either a positive or, less often, a negative right of use over land of another (the servient land), which must be seen to benefit a dominant piece of land.
For a right to be capable of being an easement, it must satisfy the four requirements under Re Ellenborough Park [1956].
Even where such requirements are satisfied, a right may not be an easement if the exercise of that right requires expenditure by the servient owner, amounts to exclusive possession of the servient land, or is not exercisable as of right.
A right that is capable of being an easement will only become an easement where it has been acquired by one of the recognised methods of acquisition.
Where a person claims to have been granted an easement by another over land of that other, this may be substantiated by evidence of an express grant. Alternatively, where there is no such evidence, a court may imply the easement was granted out of necessity, common intention, the operation of s 62 Law of Property Act (LPA) 1925, or the rule in Wheeldon v Burrows (1879).
Where a person claims to have reserved an easement in his favour over land he has transferred to another, this may be substantiated by evidence of an express reservation. Where there is no such evidence, a court may imply the easement was reserved out of necessity or common intention. Acquisition by the operation of s 62 LPA 1925 or the rule in Wheeldon v Burrows (1879) is not available.
Alternatively, an easement may have been acquired out of long use, known as prescription, of which there are three modes: common law, lost modern grant, and the Prescription Act 1832.
An easement can be either legal or equitable in status, depending upon which formalities have been satisfied. The status of an easement will determine the relevant rules governing the enforcement of that interest against a third party. These rules differ depending upon whether the easement exists over registered or unregistered land.