chapter  7
24 Pages

EASEMENTS

Easements comprise those rights which one landowner may exercise over the land of their neighbour. Common examples are the right of way, the right of light and the right of support. It is essential to the understanding of the law of easements that the student appreciates that every easement has two aspects: one landowner will enjoy the benefit of an easement and another will be subject to its burden. This is just another way of saying that easements exist over a servient tenement for the benefit of a dominant tenement. It is important to remember the dual nature of an easement as this will make problems concerning the transmission of easements to third parties easier to understand. It is often said that easements can either be ‘positive’ or ‘negative’ in character. The former are those which allow the dominant tenement owner (the person who has the benefit) to do something on the servient land, such as enjoy a right of way, while the latter prevent the servient tenement owner (the person subject to the burden) from doing something on their own land, such as building new premises. However, it is obvious that most easements have a positive and negative aspect, depending on how you look at it, and the distinction is not of great practical use. Its one advantage is that it illustrates that many so-called negative easements are similar to restrictive covenants and perhaps their subject matter would be more appropriate to the legal regime of the latter rather than the former.