RECO3037 Chap.2 Easements, Profits and Similar Rights
Easements, Profits and Similar Rights
A right that belongs to land
An easement lets the owner of one plot make a defined use of a neighbour's plot, or stop the neighbour doing a defined thing there, without ever owning or occupying it. A right of way across the plot in front, a right to fix a sign on a neighbour's wall, a right to light through a window: each is attached to the land it benefits rather than to the person who happens to own that land.
The chapter shows why that matters. When the benefiting plot is sold, section 16(1) of the Ordinance carries the easement to the buyer without any mention of it, unless the assignment says otherwise.
The four tests and the near misses
Re Ellenborough Park supplies the framework the whole topic uses.
There must be two plots, one benefiting and one burdened; the right must genuinely serve the benefiting land; the two plots must not be held by one person in one and the same capacity; and the right must be capable of being granted, which needs a capable grantor and grantee, a clear description and a right of a recognised kind.
The chapter pairs each test with the case that shows it failing: a business privilege that served no land, a claim that amounted to sharing the neighbour's yard, and rights too vague to grant, such as privacy or a view.
Look-alike rights, creation and endings
Much of the examinable material is comparison.
Licences, restrictive covenants, profits, natural rights, public rights and customary rights each resemble an easement and each differs on one feature, and the chapter sets them side by side. It then covers how easements are created, by statute, by express grant or reservation, by implication when land is divided, and in theory by long use, though the fee simple requirement leaves prescription with little room in Hong Kong.
It ends with the ways they are extinguished, including the point that years of non-use do not by themselves amount to abandonment.
What this chapter covers
- 01
Dominant and servient tenements
- 02
Positive and negative easements
- 03
The four essentials in Re Ellenborough Park
- 04
Hill v Tupper and rights that serve a business
- 05
Copeland v Greenhalf and claims of joint user
- 06
Licences, restrictive covenants and profits compared
- 07
Natural, public and customary rights
- 08
Express, implied and presumed grant
- 09
How easements are extinguished
Worked example · free
Is a promised sea view an easement
- 3Test the walking right against the four Ellenborough essentials.
- 3Test the view against the requirement of a certain, grantable right and name the better protection.
Key terms
- Dominant Tenement
- The plot of land that an easement benefits and to which the right is attached.
- Servient Tenement
- The plot of land over which an easement is exercised and which carries its burden.
- Profit
- A right to take something capable of ownership from another person's land, such as crops, minerals or wild animals.
- Quasi-easement
- A right an owner exercises over one part of his own land for the benefit of another part, which may become an easement when the land is divided.
- Licence
- A personal permission to do something on another person's land that would otherwise be a trespass, creating no interest in the land.
- Customary Right
- A right claimed by an indefinite, changing group, for example the residents of a village, which must be proved as a reasonable and certain custom.
Easements, Profits and Similar Rights FAQ
What makes a right an easement rather than a licence?
An easement needs land to benefit. It is attached to a dominant plot, passes with that plot when it is sold, and cannot be withdrawn at will by the servient owner. A licence is a personal permission with no land behind it; a bare licence can be revoked, and it may be created informally, whereas an easement generally needs a grant.
Can I claim a right of way in Hong Kong just because I have used a path for years?
Rarely. Prescription presumes a grant from long use that was open, peaceable and without permission, but it also requires both the user and the owner of the burdened land to hold the fee simple. Land in Hong Kong is held under leases, so the lectures treat an easement by presumed grant as virtually unavailable here. Look instead for an express or implied grant.
Does an easement end if nobody uses it for a long time?
Not by non-use alone. An easement ends by statute, by express release through a deed or court order, by implied release where the facts show an intention to abandon it, or when one person comes to own and possess both plots in the same capacity. Years without use may be evidence, but they do not prove abandonment on their own.
Exam move
Build a two-column card: on one side the four Ellenborough essentials, on the other the case that fails each one. Then practise placing rights you invent, a parking space, a mooring, a window, against the card in under a minute each, saying which test decides the case.
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