ABSTRACT
The distinction between 'legal' and 'equitable' rights retains significance in the law of easements despite the entry into force of the Land Registration Act 2002. Profits a prendre are often considered alongside easements, not least because they also give rights over land belonging to another. There are established criteria for determining whether an alleged right is capable of amounting to an easement, although it is also clear that these encompass a certain amount of judicial discretion. The four 'essential characteristics' of an easement are taken from the judgment of Evershed MR in Re Ellenborough Park, itself an adoption of the criteria put forward by Professor Cheshire in his Modern Real Property. They include there must be a dominant and a servient tenement; the separation of the dominant and servient tenement; the alleged easement must accommodate the dominant tenement; and the alleged easement must 'be capable of forming the subject matter of a grant'.
