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7.1.2 Easements and Profits - Creation Lecture

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DEFINITIONS OF EASEMENTS AND profits à prendre

An easement is either a positive or negative right of use over land that is owned by another. By
positive, we mean a right that the right-holder is allowed to exercise on the land. By negative, we
mean a right that the right-holder has to prevent the other landowner from acting in a certain
manner over that land. The easement benefits the landowner and their land, the so-called “dominant
tenement.” The land over which the right is exercised is called the “servient tenement.”

Profits à prendre, meanwhile, are to do with the right of one party (the owner of the dominant
tenement) to take part of the soil, minerals or natural produce that is found on or in land owned by
another party (the owner of the servient tenement). This is a right that does not occur in easements.
Further, profits à prendre exist “in gross”, which means that the land which comprises the dominant
tenement need not be adjacent or neighbouring to the land subject to the servient tenement,
whereas with easements there is a requirement for neighbouring or adjacent land.

Profits à prendre entitle the owner of the dominant tenement to take either a part of the land or take
parts of things that grow on or in the land or to take living creatures that grow on or in the land or
waters within the servient tenement. Water is exceptional in that it cannot be owned (Alfred F
Beckett Ltd v Lyons [1967] Ch 449, CA).

PART ONE: CONDITIONS

As we have seen following the definitions of easements and profits à prendre, both these rights are a
form of proprietary estoppel, meaning they can act to prevent the servient landowner from
restricting the rights accorded to the owner of the dominant tenement in the exercise of that right. 

Given the power this accords to a party claiming to have a valid easement or profit à prendre, the
court has set out a number of criteria that must be satisfied in order for an alleged easement or
profit à prendre to be valid - Re Ellenborough Park [1955] EWCA Civ 4:
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 1. There must be both a dominant tenement and a servient tenement,
2. An easement must ‘accommodate’ the dominant tenement,
3. The dominant and servient owners must be different persons, and
4. The right claimed must be capable of forming the subject matter of a grant.

1. There must be a dominant and servient tenement

The two portions of land, though separate, must (for easements) be adjacent and neighbouring to
each other, and must be two distinct parcels of land. We say that the benefit accrues to the
dominant land, and the servient land is burdened by the easement/profit à prendre (London &
Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157). The reason there must be two
distinct parcels of land, each either having the benefit or the burden, is that the rights of easements
and profits à prendre are “real” rather than “personal” relationships: the rights and liabilities apply to
land, not persons. So for example, a person does not acquire an easement to play at a golf club,
because there is no dominant land that pertains to the easement (Banstead Downs Golf Club v
Customs and Excise Commissioners [1974] VATTR 219, VAT Tr).

This right is subject to the exception of statutory easements.

2. The easement must ‘accommodate’ the dominant tenement

In order for the easement/profit à prendre to be valid the right must confer a benefit on the dominant
land, not simply the person who owns the dominant land.

This requirement of accommodation also underlines the point about the land being neighbouring or
adjacent for easements: it is for example nonsensical to suggest there can be ‘a right of way over
land in Kent appurtenant to an estate in Northumberland’ (Bailey v Stephens(1862) 12 CBNS 91 per
Byles J).

Alongside this concern that the dominant tenement be accommodated by the easement, there has
been some controversy over whether the owner of the dominant tenement may also exercise the
rights granted to the dominant tenement over adjacent land owned by the owner of the dominant
land.

There is some case law to suggest that the adjacent land (Whiteacre) may benefit from the
easement so long as its use is only ‘ancillary’ to the primary benefit which applies to Blackacre
(Massey v Boulden [2002] EWCA Civ 1634).

3. The dominant and servient tenements must be owned by different persons

Easements are rights that one person has over land owned by another person; therefore, it is
nonsensical to suggest a person has a right of an easement to the benefit and detriment of their
own land (Peckham v Ellison(2000) 79 P & CR 276, CA per Cazalet J). That being said, there is a
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distinction between landlords and tenants. Therefore, tenants can acquire an easement over the
land to which they have a right of possession yet which is ultimately owned by their landlord.

4. Easements and profits à prendre must be capable of forming the subject matter of a grant

The right must be able to be put into a grant by deed. From this point, there are several sub-
requirements to comply with in order to satisfy this condition:

1. There must be a capable grantor and capable grantee: The persons who create the easement
must both be competent and capable of doing so (Wall v Collins [2007] EWCA Civ 444).

2. The right must be sufficiently definite: In order for a right to be capable of forming the subject
matter of a grant, the alleged easement must be clear in its ambit. E.g. not a good view (Hunter
v Canary Wharf [1997] AC 655, HL) or to wander freely (Attorney-General v Antrobus [1905] 2 Ch
188, ChD).

3. The right must be the kind of right normally granted by easements: Courts are reluctant to
add new categories of rights to easements (Hill v Tupper(1863)). The courts are especially
reluctant to implicate novel easements that are negative.

4. The right must not impose any positive burden on the servient tenement owner: Unless the
circumstances are exceptional, an easement cannot require the servient owner to expend
money, resources or time in any positive or onerous action (Liverpool County Council v Irwin
[1977] AC 239, HL).

5. The right cannot deprive the servient owner of all beneficial proprietorship: Rights of
easements cannot unduly interfere with the servient owner’s ‘enjoyment of their own land’
(Moncrieff v Jamieson [2007]). The more extensive and far-reaching an alleged easement is,
the less likely it is to be upheld by a court (Reilly v Booth(1890) 44 Ch D 12)

An easement would not be enforceable only if it would ‘leave the servient owner without any
reasonable use of his land’ (London & Blenheim Estates v Ladbroke Retail Parks Ltd [1993]).
Therefore, an easement would be lawful even if it restricted yet did not entirely eliminate the servient
owner’s reasonable use of the land. Second, the courts have had some sympathy with this notion, as
in Moncrieff v Jamieson [2007].

PART TWO: MECHANICS

Grants and Reservations

The distinction between the two rights is that grants apply to land that has at all relevant times been
owned by the servient tenement holder, whereas with reservations the servient land is formerly
owned by one party and then, at the moment the land changes hands, the person who formerly
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owned the land now holds an easement or profit
 over it.  
Legal creation of easements and profits à prendre

Unlike with estate contracts, both easements and profits à prendre can be created (and can
therefore operate) at law:

1. Status of servient estate: The right must apply against a legal estate in the land.

2. Duration: An easement or a profit à prendre has to be set out in a manner that is similar to that
found in freeholds and leaseholds (LPA 1925, s.1(2)(a); LRA 2002, s.27(4) Schedule 2 paras
6(3) and 7(1)(a)).

Given that both these types of rights can exist either “in fee simple absolute” or for a “term of years
absolute”, it follows that the rights of easement and profits à prendre may exist for an unlimited and
undefined period.

3. Mode of creation: It must either be created by deed, by statute, by implication, or by

prescription.

Modes of Creation

1. Deed: Required by LPA 1925 s.52(1)

2. Statute: Unlike the usual requirement, statutory easements do not require the presence of an
adjoining or neighbouring dominant tenement.

3. Implication: A deed of transfer will incorporate by implication all those rights which are
granted, therefore because they are part of the deed (see subsection (i) above) they must be
legal rights.

If the land is unregistered, the implied easement/profit à prendre is enforceable automatically

against any successors in title of the servient land. If the land is registered, the easement/profit à
prendre is an overriding interest. The types of implied grant can overlap - refers exclusively to
easements, and not to profits à prendre.

Implication

There are four kinds of implied easements:

1. Easements of necessity: The threshold for such an easement is high (Adealon International
Corporation Pty Ltd v Merton LBC [2007] EWCA Civ 362).

The court has limited powers to create temporary rights that resemble an easement. The Access to
Neighbouring Land Act 1992 entitles the court to make an ‘access order’ (s.1(1) -(2)).

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 2. Easements of common intention: Ordinarily an easement of common intention would also
require that the easement be necessary (Nickerson v Barraclough [1981] Ch 426, CA).

3. Quasi-easements: The case of Wheeldon v Burrows(1879) LR 12 Ch D 31 dictates that an

easement can apply, from which the grantor cannot derogate, on a subdivision of land. It
entitles the holder of the right to exercise the same rights over a given section of land as those
rights formerly exercised by the grantor over the same portion of land. So-called ‘quasi-
easements’ do not apply in profits à prendre.

The right must have been enjoyed over prolonged and substantial periods of time, and should
have been discoverable on a careful inspection (Hansford v Jago);

The right must have been reasonably necessary for enjoyment of the alleged dominant
tenement (Wheeler v JJ Saunders Ltd [1995] 3 WLR 466); and

Where the owner of the land had previously exercised the right now claimed by the alleged
dominant tenement owner, the right needs to have been exercised prior to and up to the date
of transfer.

A quasi-easement is advantageous to the owner of such a right for several reasons:

It enables the owner to exercise those rights which might otherwise be precluded.

The kinds of rights that a quasi-easement provides for include rights of way, support, and light.

The doctrine applies to both legal grants and those grants which only apply in equity (Borman v
Griffith [1930] 1 Ch 493).

4. Easements under the Law of Property Act 1925: S62 contains ‘general words’ which, in the
absence of any contrary statement or intention included in a given conveyance, will be implied
into that conveyance by operation of law. The words enable the holders of existing easements
and profits à prendre to continue enjoying the benefit of those rights following conveyance
(Kent v Kavanagh [2006] EWCA Civ 162).

One of the significant implications of s.62 is that it carves out an easement or profit à prendre from
quasi-easements and even revocable privileges which are subsisting at the time of the conveyance
(Peckham v Ellison (2000) per Cazalet J).

Section 62 tends to be engaged where there has been some ‘diversity of ownership or occupation of
the quasi-dominant and quasi-servient tenements prior to the conveyance’ (Sovmots Investments Ltd
v Secretary of State for the Environment [1979] AC 144 per Lord Edmund-Davies). The presence of
two separate tenements is essential, and the absence of such is likely to be fatal to an implication
of s.62 (Long v Gowlett [1923] 2 Ch 177).
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COPY TO CLIPBOARD

Land Law
1. Introduction 
2. Land Law Basics 
3. Unregistered Land 
4. Registered Land 
5. Trusts of Land 
6. Co-Ownership 
7. Easements & Profits 
7.1 Creation 
7.1.1 Introduction 
7.1.2 Lecture Notes 
7.1.3 Example 
7.2 Acquisition by Prescription 
8. Covenants 
9. Leases & Licences 
10. Mortgages 

Other Modules
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Criminal Law 
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