“The common law recognised a limited number of rights which one landowner could acquire over the land of another; and these rights were called easements and profits. Examples of easements are rights of way, rights of light and rights of water.”
Easements can exist in all number of ways, including an easement to store goods as in Wright v Macadam and an easement to use an airfield as in Dowty Boulton Paul Ltd v Wolverhampton Corporation. However, the requirements to ensure the validity of easements can actually restrict the range of rights that can operate as easements. Some may argue that the law which governs the creation and acquisition of easements has been developed in a haphazard manner and is in need of reform. Indeed, Dr Martin Dixon commented on this: -
“Section 62 LPA 1925 is difficult to justify and usually operates only to rescue parties who have failed to specify what they really want or to catch out the innocent but unadvised land owner. It is not clear that it has a role in a system of e-conveyancing. There are uncertainties about its precise field of operation, save that it operates only on grant.”
The conditions needed to satisfy the creation of an easement were set out in Re Ellenborough, whereby four rules were set out for a right to be capable of becoming an easement. Firstly, there must be a dominant and servient tenement, whereby the benefit of the right must attach to a piece of land and not that of the individual. Secondly, the easement itself on the servient tenement must accommodate the dominant tenement, meaning that it is imperative that it is connected with its enjoyment as well as for its benefit, as in Hill v Tupper. This rule has caused somewhat controversy over the years as this case, along with the case of Ackroyd v Smith have showed the classification of easements to be closed and limited to only well-recognised types. The third rule in Re Ellenborough states that the dominant and servient tenements must be different people and therefore cannot be owned by the same person as in the case of quasi-easements. Lastly, the easement must be capable of comprising the subject matter of a grant, which includes a number of ideas aimed at controlling the range of possible easements. For example; in order for it to become an easement, the right must be of a clear description and precise definition in its meaning and must not be solely used for the purposes of enjoyment. In Re Aldred it was held that a right to a good view could not constitute as an easement. This would suggest that the acquisition of easements would be not to be found unclear as it warrants against creating miscellaneous definitions. However, some may argue that this last condition in Re Ellenborough allows for judicial discretion and indeed flexibility within the system, as new easements can actually come to exist such as an easement to use a letterbox in Goldberg v Edwards. The rules in Re Ellenborough simply act as a guide for the judge, but often a judge may choose to recognize an easement based on the needs of the property, the behavior of the parties and the circumstances regarding the case. Hence, in this view, the law is uncertain as it becomes somewhat difficult to assert if a new right will pertain to being an easement.
In relation to how easements are created, there are three ways in which it was recognised an easement could be created; by way of express or reserved grant, implied or reserved grant by operation of statute or lastly, by operation of prescription. An express grant is the most common way in which easements are created, whereby the owner of the servient land agrees in writing to grant the owner of the dominant land a right over their land for the benefit of the dominant land.***
An easement may also come into being via an...