ABSTRACT
Easements are incorporeal hereditaments. They comprise certain limited rights that one landowner may enjoy over the land of a near neighbour. Common examples are the right of way and the right of light, but easements are not limited to these two ancient rights. The right to use a neighbour’s land in connection with the movement of aircraft, 1 the right to park on land 2 and cross it with shopping trolleys, 3 and the right to the enjoyment of lighting and exit signs 4 are more recent examples. As we shall see, the ‘defi nition’ of an easement cannot be expressed in simple terms – it is a recipe of many ingredients – but, at the outset, it is vital to realise that every easement will involve two separate pieces of land. 5
First, an easement confers a benefi t on the dominant tenement (i.e. benefi ted land) enabling the owner for the time being of that land to use the easement: for example, to walk across a neighbour’s land, or to receive light or to use a drainage channel. Second, an easement places a burden on the servient tenement (i.e. burdened land), requiring the owner for the time being of that land to suffer the exercise of the easement: for example, to allow a neighbour to walk across it, or not to interfere with the passage of light to a neighbour or to permit the drainage of water. 6 Moreover, as implied by the above analysis, the easement once created confers a benefi t and burden on the land itself , so that in principle it may be enjoyed or suffered by any subsequent owner of the dominant or servient land. In other words, the easement is not merely personal to the persons who originally created it. It is a proprietary interest in land, so that (subject to the rules of registered and unregistered conveyancing) the benefi t of it passes with a transfer of the dominant tenement and the burden of it passes with a transfer of the servient tenement.
