Easements—nature and characteristics
Easements—nature and characteristics

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Easements—nature and characteristics
  • Nature of an easement
  • Essential characteristics
  • Capable of forming subject matter of grant
  • Fencing easements

Nature of an easement

An easement is an incorporeal right enjoyed by the owner of a legal estate (dominant tenement) over land in the ownership of another person (servient tenement) that binds successors in title.

Easements are usually positive, giving the dominant owner the right to enter or use the servient land in some way (eg a right of way). However, they can be negative preventing something being done on the servient land and so giving the dominant owner the right to receive something from the servient land (eg a right to light).

Easements are different from:

  1. natural rights arising by law from the ownership of land (eg a right to continuance of an accustomed flow of water in a natural channel bordering land)

  2. profits a prendre which are the right to take something from the servient land

  3. rights of common which are a form of profit a prendre exercisable over common land (eg rights of pasture or to cut turf, peat or wood)

  4. customary rights enjoyed by a changing body of persons incapable of taking a grant and in relation to which there is no dominant tenement (eg the right to use a way to get to a church or market)

  5. public and statutory rights where there is no dominant tenement (eg the right of the public to pass along