ABSTRACT
An easement is essentially a right of property that is enjoyed or exercised over land belonging to another. In one sense, the law of easements can be regarded as the private law equivalent to public planning law as where an easement prevents the owner of land from doing something on their own property. For example, if land is subject to an easement of light, this effectively prevents the owner of that land from building so as to obstruct that light. However, easements are not only negative in nature. Many easements authorise a neighbour to use the land subject to the easement in a way that would otherwise be a trespass. Thus, a right of way enables the owner of the easement to walk across their neighbour’s land. Indeed, this distinction between ‘negative’ and ‘positive’ easements is often said to be one of the most important factors in the law of easements, since case law establishes that the law should be wary of accepting new negative easements, as in Phipps v Pears (1965), in which it was alleged (and rejected) that the servient owner was under a negative easement preventing him from demolishing his premises. In fact, it is inherent in the nature of all easements that they comprise both a positive and a negative aspect, for what the dominant owner is allowed to do, the servient owner must suffer. In this sense, irrespective of whether the easement is positive or negative, all easements comprise a benefit and a burden. The land subject to the easement (the servient tenement) bears the burden of that easement whilst the owner of the land entitled to enjoy the easement (the dominant tenement) has the benefit of it. It is important to remember this duality when considering questions of the transmissibility of the benefits and burdens of easements to subsequent purchasers of the dominant or servient land.
