LAWS2204 Property
Easements and Covenants
An easement is a proprietary right that one parcel of land enjoys over a neighbouring parcel — a right of way, drainage or light. The legal question is always the same: does the claimed right satisfy all four characteristics in Re Ellenborough Park? There must be (1) a dominant and a servient tenement — an easement cannot exist “in gross”, detached from land; (2) the easement must accommodate (benefit) the dominant tenement — benefit the land, not merely the owner personally, and the parcels must be reasonably proximate; (3) diversity of ownership or occupation of the two tenements; and (4) the right must be capable of forming the subject-matter of a grant (definite, not amounting to exclusive possession). Easements can be created by express grant or reservation, by implication (Wheeldon v Burrows), by statute, or by prescription, and once on the folio bind a later registered proprietor. This chapter also covers co-ownership — the joint tenancy (with its four unities and the right of survivorship) and the tenancy in common (distinct shares), and how a joint tenancy is severed into a tenancy in common (Williams v Hensman).
What this chapter covers
- 01What an easement is — an incorporeal right of one parcel over another
- 02The four Re Ellenborough Park characteristics (in order)
- 03The 'accommodates the land not the person' and 'no exclusive possession' traps
- 04Creation — express grant/reservation, implication (Wheeldon v Burrows), statute, prescription
- 05Easements on the folio and indefeasibility (Bursill; Mercantile Credits)
- 06Co-ownership — joint tenancy (four unities + survivorship) vs tenancy in common
- 07Severance of a joint tenancy into a tenancy in common (Williams v Hensman)
Worked example: is the claimed right an easement?
- +1Dominant and servient tenement. Lot A (benefited) and Lot B (burdened) are separate parcels, so the first characteristic is satisfied for both claimed rights; neither is claimed in gross.
- +1Accommodation of the dominant land. The right of way to the road benefits Lot A as land (access). The recreation right benefits the owner personally, not the land — it fails the “accommodates the land not the person” requirement on these facts.
- +1Diversity + capable of grant. The two lots are in different ownership (diversity), and a right of way is a definite right capable of forming the subject-matter of a grant; a general recreation right risks being too wide or amounting to exclusive use.
- +1Conclude. The right of way is a valid easement (all four characteristics met); the recreation right is not, because it accommodates the person rather than the land (and may fail the subject-matter limb).
Key terms
- Easement
- A proprietary, incorporeal right that one parcel of land (the dominant tenement) enjoys over another (the servient tenement) — e.g. a right of way, drainage or light. To be valid it must satisfy all four characteristics in Re Ellenborough Park.
- Dominant and servient tenement
- The two parcels an easement requires: the dominant tenement is benefited, the servient tenement is burdened. Because both are needed, an easement cannot exist “in gross” (detached from any benefited land).
- Accommodation of the dominant tenement
- The requirement that an easement benefit the land itself, not merely the owner personally, and that the two parcels be reasonably proximate. A right that serves only the owner's personal convenience or business unconnected to the land fails this limb.
- Joint tenancy
- A form of co-ownership in which co-owners hold the whole together (the four unities — possession, interest, title and time) with the right of survivorship: on one co-owner's death their interest passes automatically to the survivors, not under their will.
- Severance
- The conversion of a joint tenancy into a tenancy in common, which destroys the right of survivorship and gives each former joint tenant a distinct share. Severance occurs by an act operating on one's own share, by mutual agreement, or by a course of dealing (Williams v Hensman).
Easements and Covenants FAQ
What are the four characteristics of a valid easement?
From Re Ellenborough Park: (1) there must be a dominant and a servient tenement (no easement in gross); (2) the easement must accommodate — benefit — the dominant tenement as land, not the owner personally; (3) the two tenements must be owned or occupied by different persons (diversity); and (4) the right must be capable of forming the subject-matter of a grant (definite, and not amounting to exclusive possession of the servient land). Run them in order in a problem.
What is the difference between a joint tenancy and a tenancy in common?
In a joint tenancy the co-owners hold the whole together under the four unities and the right of survivorship applies — on death, an interest passes automatically to the surviving joint tenants, not under the deceased's will. In a tenancy in common each co-owner holds a distinct (though undivided) share that passes under their will or on intestacy. There is no survivorship in a tenancy in common.
How is a joint tenancy severed?
By one of the methods in Williams v Hensman: an act of a joint tenant operating on their own share (e.g. selling or mortgaging it), mutual agreement among the joint tenants, or a course of dealing showing they treated the tenancy as a tenancy in common. Severance destroys the right of survivorship and converts the interest into a tenancy in common, so it is often the decisive event when a co-owner dies.
Does this chapter cover restrictive covenants as well as easements?
The chapter's examinable core in this subject is the law of easements (the four Re Ellenborough Park characteristics, creation and the position on the Torrens folio) together with co-ownership and severance. Restrictive covenants — promises that run with the land to control its use — are a closely related way that one parcel can burden another; confirm the assessed depth of covenants for your cohort against your own Reading Guide, and treat easements and co-ownership as the high-yield material here.
Exam move
Treat an easement issue as a sub-problem that you resolve by marching through the four Re Ellenborough Park characteristics in order, watching for the two classic traps — a right that accommodates the person rather than the land, and a claimed right so wide it amounts to exclusive possession (which cannot be an easement). Then address creation (express grant or reservation, implication under Wheeldon v Burrows, statute, or prescription) and whether the easement is on the folio so that it binds a later registered proprietor. For co-ownership, be able to distinguish the joint tenancy (four unities + survivorship) from the tenancy in common, and to spot and apply severance (Williams v Hensman), which is usually the fact that decides who takes on a co-owner's death.
