70317 Chap.12 Easements: Validity and Scope
Easements: Validity and Scope
Benefit and burden on two titles
An easement gives the owner of one piece of land, the dominant tenement, a limited right over another, the servient tenement, such as a driveway or a right to run pipes. Because it is attached to land, it passes when either parcel is sold.
A profit a prendre is the related right to take something from land.
Validity
Re Ellenborough Park sets four requirements: a dominant and a servient tenement, a right that accommodates the dominant land, different owners or occupiers, and a right capable of forming the subject of a grant.
A right that ousts the servient owner, as considered in Clos Farming, fails.
Creation and scope
Easements arise by registered grant, by a s 88B instrument on a plan, by implication under Wheeldon v Burrows, or by court order under s 88K. Their scope is read from the registered words, following Westfield v Perpetual, and s 89 allows modification or extinguishment.
What this chapter covers
- 01
Dominant and servient tenements
- 02
The four Re Ellenborough Park requirements
- 03
Ouster and Clos Farming
- 04
Express grant and s 88B instruments
- 05
Implied easements and Wheeldon v Burrows
- 06
Court-imposed easements under s 88K
- 07
Construing the grant and Westfield v Perpetual
Worked example · free
Checking a right of way against the four Re Ellenborough limbs
- 1Two identified parcels exist: Lot 7 is dominant and Lot 8 servient.
- 1Beach access by foot benefits any owner of Lot 7, so the right accommodates the land, not just one person.
- 1The lots have different owners, and a defined footpath leaves the servient owner reasonable use: no ouster.
- 1The easement is valid and registered, so it binds the new owner of Lot 8 through the register.
Key terms
- Dominant Tenement
- The land that receives the benefit of an easement.
- Servient Tenement
- The land that bears the burden of an easement.
- Profit A Prendre
- A right to enter another's land and take something from it, such as timber or gravel.
- Ouster
- Use of an easement so extensive that it leaves the servient owner without reasonable use of the land.
Easements: Validity and Scope FAQ
What are the requirements for a valid easement?
Re Ellenborough Park sets four: there must be a dominant and a servient tenement; the right must accommodate the dominant tenement; the two parcels must have different owners or occupiers; and the right must be capable of forming the subject of a grant, which excludes rights amounting to possession of the servient land.
Can a court create an easement?
Yes. Section 88K of the Conveyancing Act allows the court to impose an easement where it is reasonably necessary for the effective use or development of the dominant land, with compensation to the servient owner. The Week 10 tutorial asks you to consider it as an alternative when no easement exists by grant or implication.
How is the scope of a registered easement decided?
By the words recorded on the register. Westfield v Perpetual, an asterisked High Court case, limits the use of outside evidence to explain a registered grant, because later purchasers rely on the register. Ask whether the new use is the kind the grant allows and whether its intensity goes beyond what the grant contemplates.
What is the difference between an easement and a licence?
An easement is an interest in land that benefits one parcel and burdens another, so it passes automatically when either is sold. A licence is a personal permission that ordinarily ends with the parties' relationship and does not bind a buyer. The Week 10 tasks ask when an easement is the right tool rather than a licence or contract.
Exam move
Write the four Re Ellenborough requirements as a checklist and apply it to every easement problem, spending most time on accommodation and ouster. Learn the four creation routes and which ones bind a later registered proprietor through the register. For scope, practise reading a grant's exact words, then comparing the new use and any works with them, and finish with the remedies for obstruction.
Look at a large housing estate plan, such as the development the course uses, and identify where easements for access or services would have been created on subdivision.
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