UNIVERSITY OF

LUSAKA
Unit 9 – Easements and Profits
Introduction
• Easements and Profits, collectively known as servitudes, are interests entitling
their owners to exercise certain rights over the land of another.
• An easement us usually the right to do something specific on another person’s
land. for example, the right to walk across a path or to drive down a road way, or
to enter the land for a particular purpose such as repair of one’s own property or
access to pipes.
• A Profit à prendre has been described as a right to take something off another
person’s land. The thing taken must at the time of taking be something capable
of being owned.
• Examples of a profit would include a profit of piscary which entitles a person to
enter another’s land and take fish, profit in the soil giving the right to take sand,
gravel or coal.
Easements
• Easements may be defined as rights attached to land entitling its owner (the
dominant owner) to do, or prevent the doing of, something on another person’s
piece of land (the servient tenement).
• Simply put, an easement is the right of a land owner to enjoy limited use of land
of another land owner.
• Once somebody has an easement you cannot interfere with their right.
• Examples of common easements include: rights of way, light, support of a
building and water.
Cont’d
• There are two types of easements:
1. Positive easements: is an easement that permits the owner of the dominant
land to do something on the servient land (e.g use a path or run pipes over the
servient land)
2. Negative easements: easements that limit what the owner may do on the
servient land.
• In essence what this means is that, the owner of the servient land may not be
able to exercise certain rights because it may interfere with the right of the
dominant land (e.g a right to light, the owner may not be able to erect a large
tower).
• See- Phipps v Pears [1964] 2 ALL ER 35 [CA]
Cont’d
• How do you recognize what an easement is?
• A right must have all of the following characteristics to be an Easement, as
established in Re Ellenborough Park [1956] CH 131:
1) There must be a dominant tenement (that enjoys the benefit of the
easement) and servient tenement (over which the right is exercised);
2) The right must accommodate the dominant land;
3) The Dominant and Servient Tenement must not be Owned and Occupied by
The Same Person;
4) The right must be capable of forming the subject matter of the grant.
Cont’d
• There Must be a Dominant and Servient Tenement
• There must be land that is benefiting from the exercise of the right (the
dominant tenement) and land that is burdened (the servient tenement) -
London & Blenheim Estates ltd v Ladbroke Retail Parks ltd [1993] ALL E.R
307
• Every easement is linked to two pieces of land; An easement must exist in
connection with a piece of land. It cannot exist independently (in gross, like a
profit a prendre)
• The need for dominant and servient tenement limits the impact of easements
on the servient land - so that not everybody is able to enjoy rights over the
servient land- and confines the ambit of easements to those rights that truly
benefit other land.
Cont’d
• An easement must accommodate the dominant tenement
• For an alleged right to qualify as an easement, it must accommodate i.e.
benefit the dominant tenement as tenement – see Polo Woods Foundation v
Shelton-Agar [2009] EWHC 1361 (Ch)
• This is an important requirement because it confines easements to those
rights that attach to land and not ‘merely’ to the person who currently owns
and occupies the land (it must not be a personal benefit).
• There are no set criteria for judging whether an alleged easement is
sufficiently proprietary in nature and each case must be decided on its own
facts. The following guidelines assist the courts in determining whether the
easement accommodates the dominant tenement:
a) Geographical nexus: the servient tenement must be sufficiently proximate (i.e
near) to the dominant tenement to be able to confer a benefit on it - Bailey v
Stephens (1862) 12 CBNS 91
Cont’d
• For example, in order for a right of way over the servient land to benefit the
dominant land, the plots of land are going to have to be close to each other; the
two tenements have to be adjacent, or share a common boundary to satisfy this
requirement;
• Nonetheless, in general the more physically separate the two properties are, the
less likely it is that a court would regard an alleged easement over one is
benefiting the other.
b) The alleged right must not confer a purely personal advantage on the owner of
the dominant tenement - Hill v Tupper (1862) 2H 8C 121.
c) It is unlikely that a right that confers a vague and general ‘recreational use’ on
the dominant tenement will be accepted as an easement.
• For example, a right to wander over open country side or parkland is unlikely
to be accepted as an easement;
• Given that the purpose of an easement exists to enhance the social and
economic value of land, by giving benefits and imposing burdens on the land
as such, it is not to be used for the provision of public amenities.
Cont’d
• The Dominant and Servient Tenement must not be Owned and Occupied by The
Same Person;
• if the dominant and servient land comes to be vested in the same person
then the easement is extinguished, as per, Roe v Siddons [1888] 22 OBD 224.
• There must be both unity of ownership and unity of possession for an alleged
easement to be rendered impossible.
• This means that a tenant may enjoy an easement over land retained by the
landlord and vice versa as in this case there is unity of ownership but no unity
of possession.
Cont’d
• The right must be capable of forming the subject matter of a grant;
• To be an easement, the right has to meet the standard of clarity and certainty
such that it could have been ‘granted’.
• This a broad criterion and allows the court to exercise considerable discretion
in deciding whether any right is capable of being an easement.
• The point is that every easement must be capable of being expressly
conveyed by deed (even if it is created in some other way).
• Factors identifying ‘easement-type’ rights:
a) The person or entity granting an easement must have the capacity to do
so. Equally, the grantee must have legal capacity to receive a grant.
b) The right must be sufficiently definite. A vague or inexact right cannot
exist as an easement.
Cont’d
c) The right must be within the general nature of rights capable of existing
as easements; the right need not fall within the recognised easements
(way, water, light, support) but the right should satisfy the four general
characteristics of an easement.
d) The right must not deprive a servient owner of possession - Copeland v
Greenhalf [1952] CH 488.
e) Further it is unlikely that a Court will recognize an alleged easement that
requires the servient tenement owner to spend money – Rance v Elvin
[1985] EWCA Civ 7
Distinction between Easements and Profits
• The main distinction between an easement and a profit is that the latter entitles
its owner to take away something capable of ownership from the servient land,
while the former does not.
• An easement also differs from a profit in that a profit may exist “in gross,” (i.e.
independent of ownership of land or belonging to a person in his own right, not
as annexed to ownership of land); while an easement must always be
appurtenant i.e. attached to ownership of particular land.
Acquisition of Easements and Profits
a) An easement is expressly granted when the owner of the potential servient
tenement grants an easement over that land to the owner of the dominant
tenement;
b) An easement is expressly reserved when the owner of the potential dominant
tenement keeps (i.e.) reserves an easement for the benefit of the land kept.
• This can occur where land is owned by a potential servient owner and he then
sells or leases a piece of that land to another, he may include in that sale or
lease a grant of an easement to the purchaser.
c) An easement is implied when the parties did not create one expressly, but the
law says they have done so. For instance, when A buys part of B’s land and then
finds that he cannot get access to it because it is completely landlocked.
d) Easements may be granted by an Act of Parliament for example giving rights in
respect of cables, pipes, sewers etc.
Cont’d
• Presumed Grant or Prescription - there are three methods to a common law
prescription;
1) Common law prescription
2) Doctrine of lost modern grant
3) Under the Prescription Act 1823
• These are ways in which the person claiming the prescriptive right may establish
that the long use, was indeed long enough to mature into an easement.
• At common law a grant was presumed if enjoyment dated from time immemorial
i.e. since 1189. This was later converted into the test of living memory and later on
a user of twenty years or more has sufficed;
• Under lost modern grant, if a claimant could show actual enjoyment for a
reasonable period (20 years or more), the Court was bound to presume an actual
grant which was later lost.
• See Charles Dalton v Henry Angus and Co. and Another [1881] 6 App Cas 740.
Cont’d
• The Prescription Act treats easements of light differently from other easements.
• Section 2 of the Act provides that an easement (other than that of light) can
be claimed where it is actually enjoyed by any person claiming a right thereto
without interruption for the full period of 20 years;
• Section 3 of the Act provides that where a right of light has been actually
enjoyed for a full period of 20 years without interruption the right becomes
absolute and indefeasible unless enjoyed by written consent or agreement.
• The law presumes from long enjoyment that the right had a lawful origin in a
grant.
• In each case the following common criteria must be established:
1. The use is as of right - without force, without secrecy without permission; -
see Liverpool Corporation v H.Coghill and Son Limited [1918] 1Ch. 307.
Cont’d
2. The user must be continuous, as far as the nature of the right allows . User
can be by successive owners of the dominant tenement.
3. The user must be by or on behalf of the owner against another owner.
• If a tenant acquires an easement against a third party, he acquires it on
behalf of the fee simple estate;
• If a tenant occupies the servient tenement, an easement cannot be
acquired against it.
• See s. 50 of the Lands and Deeds Registry Act which provides for how the
memorial of an easement must be recorded in a certificate or provisional
certificate of Title.
• Easements can be distinguished through:-
a) Abandonment
b) Practical impossibility,
c) Unity of ownership and possession
d) Statute.
Cont’d
• Further Reading:
• Jasat v Patel (1978) ZR 208 (HC)
• Chona v Evergreen Farms Limited 1996/HP/2727 (unreported)
• Wheeldon v Burrows (1879) LR 12 Ch D 31