Easements

EASEMENTS

An easement is an intangible right over land, traditionally classified as a form of real property. Easements are also known as ‘incorporeal hereditaments’. Incorporeal hereditament is an old Roman term, used to describe rights which do not have any substantial existence but which are nevertheless proprietary because they relate to and are enforceable over real property and are capable of being inherited. Easements are enforceable through real actions; hence, despite their incorporeal nature, they are considered to constitute a form of real property, because the owner of land which is subject to the benefit of an easement is entitled to enforce the right which is the subject matter of the easement against the owner of the burdened land and this right is enforceable against the rest of the world. Easements come in a variety of forms and cover an increasing range of rights. One of the primary and defining characteristics of the easement is that it does not constitute a possessory right; the holder of an easement may exercise certain rights over the land, but those rights are not possessory. Where the right to take possession of land is conferred, the right is properly described as a lease rather than an easement.

A ‘natural’ right is a right which naturally flows with, or is incidental to, the ownership of an estate or interest in the land; it is a right which is an automatic extension of an estate in land and therefore does not need to be additionally created. Classic examples of natural rights include the right to the natural flow of water from an established source (Swindon Waterworks Co Ltd v Wilts and Berks Canal Navigation Co (1875) LR 7 HL 697) and the right to use and enjoy the land, the right to shade under a tree on the land and the right to produce grown on the land. There is no need to create additional easement rights in circumstances where such rights are already naturally conferred.

Whilst, conceptually, easements are similar to restrictive covenants, there is a pivotal difference between the two. Restrictive covenants are contractual, and therefore are primarily only enforceable in personam, whereas an easement confers an in rem right which is enforceable against the rest of the world. Being proprietary in nature, easements do not need to be annexed to the land or to satisfy particular equitable tests in order to run with the land: all that needs to be established is that the requirements for a valid easement exist and that the easement has been properly created.

An easement also differs from a profit à prendre. A profit à prendre is similar to an easement in that it confers a right, but the right is to take some part of the soil, minerals or natural produce upon the land (Manning v Wasdale (1836)5 Ad & E 758). A profit is essentially a right to take tangible produce from the land itself rather than a right of usage. Unlike easements, a profit à prendre may exist privately or be mutually shared amongst a range of holders. Furthermore, a profit à prendre may be imposed over specific land for the benefit of a dominant tenement and, in such case, is referred to as an ‘appurtenant profit’ or, alternatively, it may exist as a ‘profit in gross’ where it provides no identifiable benefit for a dominant tenement. Profits may be expressly or impliedly created under common law or equity, as is the case with easements. However, the principles relating to implied easements of necessity would not apply to the profits because the profit is regarded as an extraneous right and not one of exigency.

A profit à prendre cannot exist unless it directly relates to the character of the land itself or the flora, fauna or produce of the land, the profit will be invalid unless it refers to this ‘produce’ of the land. Classic examples of profits include the right to chop down firewood and the right to gather fruit or vegetables from the land. The right must involve the taking of specific produce from the land rather than a right to produce upon the land because the profit is essentially a right to take from the land, not a right to occupy and use the land (Permanent Trustee Australia Ltd v Shand (1992) 27 NSWLR 426).

Easements differ from licences because a licence is non-proprietary and merely confers permission to enter land; a licence is not a proprietary right to actually use the land. Furthermore, licences may be revoked, where the circumstances require it, whereas, as an easement constitutes a proprietary interest, once properly created, it cannot be unilaterally revoked.

Finally, an easement differs from a lease because, as noted above, the defining feature of an incorporeal hereditament is that it does not confer any right to possession. A lease constitutes a non-freehold estate which will exist for a specified duration and which confers exclusive possession upon the lessee for that period of time. An easement constitutes a right of usage over the land, which may exist indefinitely but which cannot amount to a right to confer exclusive possession. An easement is an ‘additional’ right over land— the right to possess land is a component of the freehold estate. Any easement which attempted to confer a right to exclusive possession may either be struck down or, in substance, it may be read as creating a lease.

Easement rights may be positive or negative in nature. Positive easements entitle the dominant tenement holder to carry out certain activities or to conduct a particular usage over the servient tenement. Examples of positive easements include rights of way, a right to use and enjoy parklands, and a right to enter the servient land to install and maintain sewerage pipes. On the other hand, negative easements are easements which, in substance, have the effect of circumscribing the behaviour of the servient tenement holder. A negative easement constitutes a restriction on the proprietary rights of the servient tenement holder. A classic example is the right of support, others include a right to the flow of air through a defined aperture, and the right of the dominant tenement holder to receive light. Whilst, in form, a negative easement may appear to confer positive rights upon the dominant tenement holder, in substance the right is actually negative as it restricts the activities of the servient tenement holder. For example, a right to support from a building effectively precludes the servient tenement holder from demolishing the building or in any way reconstructing the building so as to leave the adjoining building unsupported.

One of the criticisms that is often levelled at negative easements is that they interfere with the fundamental proprietary right of the servient tenement holder to use and enjoy the land. Where this interference is too extensive, courts have held, for policy reasons, that the easement should not be enforced. The classic decision on this is Phipps v Pears [1965] 1 QB 76. On the facts of that case, the owner of two adjoining houses decided to demolish one of them and build a new house which directly supported the adjoining house and prevented one side of the wall from having to be weatherproofed. Subsequently, the properties were conveyed to different purchasers. The purchaser of one of the properties proceeded to demolish his property in accordance with a directive from the local council. The effect of this demolition was to leave the adjoining wall, which was not weatherproofed, unsupported and vulnerable to the elements. The plaintiff was the purchaser of the adjoining house, and as the wall suffered damage due to exposure, he argued that he held an implied easement entitling him to protection from the weather and the neighbouring defendant had breached this easement.

The judgment of Lord Denning in Phipps may be criticised on the ground that it overlooks the fact that restrictions can be imposed upon landowners in the form of restrictive covenants. Whilst this may be true, it is important to remember that the prohibitions imposed by restrictive covenants are quite different in form and scope to negative easements. A restrictive covenant is a contractual prohibition, and may only be enforceable against a successor in title to the covenantor where the successor in title takes with notice of its existence and the restriction identifies and benefits particular land. Further, unlike easements, restrictive covenants cannot be implied, they must be expressly created. A negative easement, on the other hand, where upheld, creates a proprietary right which may endure, despite the fact that the servient tenement holder has no notice of its existence. Whilst the negative easement must identify and benefit the dominant tenement, it is enforceable as an incorporeal hereditament, not as a contractual right. Hence, it may be argued that courts are right to be circumspect when examining the enforceability of new forms of negative easements, because the consequences can be quite deleterious upon the servient tenement holder. This issue may take on an increasing significance with the acceleration of high density, inner city living where basic rights such as plants, trees, garden and airspace are becoming a rarity.

Before a valid easement can be recognised, it must be established that it attaches to a servient tenement for the benefit of a dominant tenement. The servient tenement is the land which is burdened by the easement. The dominant tenement is the land which is benefited by the easement. The dominant tenement does not, however, have to be land: it is possible for an easement to exist which benefits another easement. Hence the rule is not restricted to tangible forms of property (Hanbury v Jenkins [1901] 2 Ch 401).

If it is established that there is no dominant tenement, the easement is known as an ‘easement in gross’. The common law will not enforce an easement in gross because the courts have held that, where there is no benefited land, the right is no different from a personal licence. An easement is an intangible right which exists for the benefit of land and, if the land does not exist, the right cannot be properly described as proprietary. As noted by Cresswell J in Ackroyd v Smith (1850) 10 CB 164, pp 187–88:

An easement will only be enforceable at law where it can be proven that the easement operates to provide a benefit to the dominant tenement. Where the benefit that is provided is personal in nature or does not sufficiently attach to the dominant tenement, the right will be unenforceable as an easement, because the connection to the land will be insufficient. As the basis of the easement is an incorporeal right over land, it is not within the power of a grantee to create an easement conferring rights not related to the land. In such a situation, the right cannot be truly described as an easement. This has been clearly established in the classic authority, Ackroyd v Smith (1850) 10 CB 164. In that case, it was held that an attempt to confer rights upon a party which are unconnected with the use and enjoyment of the land will merely operate as a licence or a covenant on the part of the grantors and will create no proprietary right in the form of an easement.

An easement can only accommodate the dominant tenement where there is a sufficient degree of proximity between the dominant and servient tenement. If the tenements are a long distance apart, it will be difficult to establish that the dominant tenement has received a benefit from land. This does not mean that the dominant and servient tenements must be physically contiguous; they must, however, be sufficiently proximate so that the right attaching to the burdened land provides an active ascertainable benefit to the dominant tenement (Todrick v Western National Omnibus Co Ltd [1934] Ch 561).

It is not necessary for the owner of the dominant tenement to acquire a benefit from the easement alone; where a right benefits the dominant tenement as well as persons unconnected with the ownership of the land, the right may still constitute an easement (Re Ellenborough Park [1956] 1 Ch 131). Furthermore, it will be sufficient for the right to accommodate a business conducted on the land, as this is perceived to be a right which actually provides a benefit to the dominant tenement (Copeland v Greenhalf [1952] 1 Ch 488).

A right may accommodate the dominant tenement despite the fact that it only provides a benefit to a small portion of the land. Hence, for example, a right of way which benefits only a small portion of the overall dominant tenement can still constitute an easement. As noted by Hood J in Registrar of Titles ex p Waddington [1917] VLR 603 (p 606): ‘It is difficult to see what benefit can be derived in the enjoyment of a bit of land one link square from a right of carriageway over an adjacent street. But such a benefit is not impossible.’

This has been logically extended to apply to subdivided land. In Gallagher v Rainbow (1994) 68 ALJR 512, the court held that there will be a presumption that an easement which benefits the whole dominant tenement will also benefit each of its subdivided parts unless the easement, upon a proper construction, was only intended to benefit the dominant tenement in its original entirety.

Where one person owns and possesses both the dominant and servient tenements, there can be no easement; there is no need to confer additional proprietary rights over land already owned; an owner can, for example, exercise a right of way over land which she herself owns. It is nonsensical to create an easement over your own land—it is a superfluous right. As noted by Lord Esher MR in Metropolitan Railway Co v Fowler [1892] 1 QB 165, ‘You cannot have an easement over your own land’.

A right which is vague, obscure and indistinct may not constitute a valid easement because such rights do not, in substance, confer a definitive benefit upon the dominant tenement. Particular types of rights have been held to offend this requirement. Rights of ius spatiandi, that is, rights conferring the privilege of wandering over land, have traditionally been held to be incapable of forming the subject matter of an easement. Such rights are usually distinguished from rights to use and enjoy garden land and facilities. In Re Ellenborough Park [1956] 1 Ch 131, it was held that the right to enjoy the garden in the square known as Ellenborough Park, which was granted to all the tenants in common owning land around the park, constituted a valid easement because a right to use and enjoy the garden was a valid form of recreation over land and should be contrasted from a mere right to roam and wonder over the land. This decision was subsequently confirmed in Riley v Pentilla [1957] VR 547.

In Evanel Pty Ltd v Nelson [1995] NSW Conv R 55–759, the court held that a right, described as a ‘right of footway’ over the garden, was capable of forming the subject matter of an easement. This was so despite the fact that the right was limited to a specific land and was described in restrictive terms as a right of footway.

As with rights of ius spatiandi, rights of pure recreation had traditionally been held to be incapable of forming the subject matter of an easement (Mounsey v Ismay (1865) 3 H & C 486; 159 ER 621). The rationale seems to be that such rights are flimsy and insubstantial and provide little definable benefit to the dominant tenement. Nevertheless, as society changes and greater emphasis and importance are placed upon recreational facilities, the basis of this rule is being reassessed. Certainly, in Evanel Pty Ltd v Nelson [1995] NSW Conv R 55–759, the court emphasised the fact that a right to access garden facilities, whether by way of a footway or otherwise, is very closely linked to general rights of recreation; such rights can confer an important benefit upon land, particularly in high density areas and housing development estates where shared recreational facilities are regarded as an essential component of land ownership.