Making Land Work: Easements, Covenants and ... - Law Commission

an easement, as laid down by the decision in Re Ellenborough Park. 24 The Court
of Appeal had to decide the status of a right for residents to use a garden in the
middle of a square around which their houses were built. That case gave rise to
the four well-known characteristics of easements, which the Consultation Paper
took as its starting point for its discussion of easements: 25
(1) there must be a dominant tenement and a servient tenement; 26
(2) the easement must accommodate the dominant tenement;
(3) the dominant and servient tenements must be owned by different
persons; and
(4) the easement must be capable of forming the subject matter of a grant.
We can look at those four requirements in turn.
2.23 First, there must be dominant and servient land: 27
… no person can possess an easement otherwise than in respect of
and in amplification of his enjoyment of some estate or interest in a
piece of land. 28
Traditionally it has been said that there is “dominant land” and “servient land”,
while more modern usage (including that found in Land Registry publications)
refers to benefited and burdened land. We use both sets of terms.
2.24 The alternative to the rule that there must be dominant and servient land would
be for easements to be capable, generally, of existing “in gross”, that is, to belong
to a person without being appurtenant to land. We asked in the Consultation
Paper whether the requirement for dominant land should be dispensed with, so
that easements in gross would become available. 29 Most consultees regarded
that as an undesirable change. We agree that such reform would not be desirable
and that the introduction of easements in gross would lead to a proliferation of
adverse interests in land, unlimited by the needs of the dominant land. 30 We
expand on this in the Analysis of Responses at paragraphs 3.1 to 3.13.
24 [1956] Ch 131.
25 Consultation Paper, para 3.1.
26
The word “tenement” here simply means a plot of land; whether or not there is a building
on the land is irrelevant.
27
But see our discussion of Wall v Collins [2007] EWCA Civ 444, [2007] Ch 390 in Part 3;
para 3.232 and following below.
28 Alfred F Beckett Ltd v Lyons [1967] Ch 449, 483, by Winn LJ. The roots of the principle are
much older than this – Gray and Gray, para 5.1.25 states that it was “rationalised” by
Cresswell J in Ackroyd v Smith (1850) 10 CB 164, 138 ER 68. More recently, it was
described as “trite law” in London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
[1994] 1 WLR 31, 36, by Peter Gibson LJ.
29 Consultation Paper, para 3.18.
30 Note the comments of A Lawson, “Easements” in L Tee (ed), Land Law: Issues, Debates,
Policy (2002) p 71: “such a change would undoubtedly risk the imposition of heavy,
additional burdens on servient land …”.
15