Easements: The right is capable of forming the subject-matter of a grant

Subscribe on YouTube

I help people navigate their law degrees

🎓 Simple and digestible information on studying law effectively.

🎬 One new video every week (I accept requests and reply to everything!)

📚 FREE courses, content, and other exciting giveaways.

Gareth Evans' personal youtube channel

4) The right is capable of forming the subject-matter of a grant

This requirement has a number of sub-rules that must be complied with before the right can qualify as an easement:

  1. The right must not constitute a mere right of recreation possessing no utility or benefit;
  2. The right must not be expressed in terms which are too wide or vague;
  3. The right must not be inconsistent with the proprietorship or possession of the servient owner;
  4. The right must not benefit the dominant owner without activity on his part;
  5. The right must not require the servient owner actively to do something, except maintain a fence.

Sub-Rule (i): the right must not constitute a mere right of recreation possessing no utility or benefit

summary

This sub-rule means that any right that is merely recreational cannot exist as an easement.

Re Ellenborough Park:

  • This sub-rule was discussed by Evershed MR: "We do not think that the right to use a garden.. can be called one of mere recreation and amusement.. No doubt a garden is a pleasure... but, on our judgment, it is not a right having no quality either of utility or benefit…"
  • In other words, Evershed MR was saying that even though a right may appear to be merely recreational, it is rare for a right to possess absolutely no utility or benefit → this demonstrates that this sub-rule has little practical bite.
  • It is hard to think of a right that is merely recreational without delivering some sort of benefit or utility alongside it.

Sub-Rule (ii): the right must not be expressed in terms which are too wide or vague

Summary

In Re Ellenborough Park, Evershed MR held the right to "full enjoyment of the pleasure ground" capable of amounting to an easement.

  • Although, prima facie the right looks too vague/wide the court said it was capable of amounting to an easement.

Evershed MR contrasted the right before him with the "indefinite and unregulated privilege" of "wandering at will over all or every part of another's field or park" → so, this phrase would probably fail to be an easement due to bein too wide/vague.

Sub-Rule (iii): The right must not be inconsistent with the proprietorship or possession of the servient owner

Summary

In other words, a right that is so extensive it deprives the servient owner of their possession or ownership of part of their land cannot exist as an easement.

Rights granting a use of land which is clearly demarcated and limited easily satisfy this rule (i.e. can amount to an easement) e.g. the right to use a loo.

BUT, in Copeland v Greenhalf (1952) the right was NOT satisfied:

  • In this case, the claimaint owned a house and an adjoining orchard. The orchard was accesed from the road by a strip of land (150 feet long and 15 feet wide). The defendant had stored his vehicles on this strip of land for a number of years using almost the entire strip. The High Court considered whether the right to store vehicles on a strip of land is capable of being an easement.
  • It was HELD that the right was too extensive to exist as an easement i.e. it involved to great of an incursion on the servant land → "It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner" (per Upjohn J)

In Grigsby v Melville (1974), the High Court considered whether "an easement of unlimited storage within a confined or defined space (a cellar) is capable of existing as a matter of law" → it was held that the right was too extensive to be an easement.

The Art of Getting a First in Law - ONLY £4.99

FOOL-PROOF methods of obtaining top grades

SECRETS your professors won't tell you and your peers don't know

INSIDER TIPS and tricks so you can spend less time studying and land the perfect job

We work really hard to provide you with incredible law notes for free...

The proceeds of this eBook helps us to run the site and keep the service FREE!

CONTENT

When is the right too extensive?

In the above cases, there is little guidance as to when a right crosses from being okay to being too extensive.

The court has developed 2 alternative and competing tests for determining whether a right satisfies this sub rule: the 'reasonable use' test and the 'possession and control' test.

The 'reasonable use' test:

  • London & Blenheim Estates (1992): Judge Baker asserted that a right is inconsistent with the servient owner's proprietorship or possession if "the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land."
  • This 'reasonable use' test was subsequently adopted by the court of appeal in Batchelor v Marlow (2001) when determining whether a right to park six cars for 9.5 hours every day of the working week is capable of being an easement → the right was held to be too extensive to be an easement i.e. it left the servient owner without any reasonable use of his land.

The 'possession and control' test:

  • The reasonable use test was criticised by the House of Lords in Moncrieff v Jamieson (2007), and an alternative test was introducted: this test dictates that an easement can only exist if the owner of the servient land retains "possession and control" of his land

Which test represents the law?

  • Although Moncrieff v Jamieson (2007) is a House of Lords authority - so the 'possession and control' test must be taken seriously - their Lordships comments were strictly obiter. The right in question satisfied both tests in the case, so it did not actually rely on the 'possession and control' test
  • Thus in Virdi v Chana (2008) the 'reasonable use' test was held still to represent the law.

What test should represent the law?

  • The test in Moncrieff v Jamieson (2007)em>span> can be readily explained and justified by the need to distinguish an 'easement' from the other right in rem of a 'lease' (the right to exclusive possession of land) and a 'freehold' (the right to proprietorship of land).
  • It is less clear why the category of easement should be further restricted in line with the 'reasonable use' test.
    • "I do not see why a landowner should not grant [easements] over his land to any extent that he wishes... I can think of no reason why, if an area of land can accommodate nine cars, the owner of the land should not grant an easement to park nine cars on the land. The servient owner would remain the owner of the land and in possession and control of it." (Lord Scott in Moncrieff v Jamieson (2007)).

Sub-Rule (iv): the right must not benefit the dominant owner without activity on his part

Summary

In other words, it cannot be a negative easement (unless it is one of the four below).

The requirement explained:

  • A right which involves activity on the part of the dominant owner is a 'positive easement' (e.g. an easement outlining where the dominant owner can park his car on servient land) → easements, in almost all cases, must be positive.
  • A right which does not involve activity on the part of the dominant owner is a 'negative easement' → negative easements are allowed in limited circumstances.

The law recognises only four kinds of negative easement:

  • The right to the flow of water through an artificial channel;
  • The right to a flow of air;
  • To right to the flow of light to a particular aperture; and
  • The right to the servient land’s support for buildings on dominant land.

It was held in Phipps v Pears (1965) that no other negative easements can exist.

Sub-Rule (v): The right must not require the servient owner actively to do something, except maintain a fence

Summary

The requirement explained:

  • It is essential to the concept of an easement that the servient owner's role is passive → an obligation requiring the servient owner to engage in expenditure of money or undertake a positive action cannot, therefore, qualify as an easement.
  • There is one exception to this rule: in Jones v Price [1965], the Court of Appeal held that a right requiring a servient owner to maintain a boundary fence is a valid easement.

Also see the case of Rance v Elvin [1985].

Law Application Masterclass - ONLY £9.99

Learn how to effortlessly land vacation schemes, training contracts, and pupillages by making your law applications awesome. This eBook is constructed by lawyers and recruiters from the world's leading law firms and barristers' chambers.

✅ 60+ page eBook

✅ Research Methods, Success Secrets, Tips, Tricks, and more!

✅ Help keep Digestible Notes FREE

Course on the art of learning effectively, a reading masterclass