EASEMENTS

Lesson Objectives
• - Define and explain the legal nature of easements.
• - Identify the characteristics of a valid easement.
• - Distinguish between legal and equitable easements.
• - Explain the methods of acquiring easements.
• - Apply legal principles to hypothetical fact patterns.
• - Discuss the extinguishment of easements.

Definition and Nature of Easements

An easement is a right enjoyed by the owner of land (dominant tenement) over the land of
another (servient tenement). Examples include rights of way, light, support, and passage of
utilities. Easements are rights in rem and are enforceable against future owners.

Characteristics of a Valid Easement (Re Ellenborough Park)

According to this case, an easement must satisfy the following:

• - There must be a dominant and a servient tenement.

• - The easement must accommodate the dominant tenement (benefit it).
• - The two tenements must not be owned and occupied by the same person.
• - The right must be capable of forming the subject matter of a grant (clear, certain, and
recognized by law).

HOW ARE EASEMENTS ACQUIRED?

Easements can be acquired through various legal methods. Each method carries different
legal implications depending on whether it is express, implied, statutory, or prescriptive.
Below are the recognized modes of acquisition:

1. Express Grant or Reservation

An express grant or reservation is the most straightforward method. It involves written
documentation, often in the form of a deed. If a landowner sells part of their land and
wishes to grant or retain rights over it, those rights must be expressly stated.
Key Case: White v Grand Hotel Eastbourne Ltd: CA 28 Oct 1912
– A general right of way continued after the property changed from a private house to a
hotel.

2. Implied Easements
There are several categories of implied easements:

A. Easement of Necessity
Occurs when a parcel of land is landlocked. An easement is implied to ensure access. Mere
inconvenience is not sufficient.

Key Case: Lush v Duprey – Court implied a right of way to access a landlocked property.

B. Intended Easements
Implied based on the presumed intention of the parties at the time of conveyance. Usually
required for fulfilling the purpose of the land use.

Key Case: Wong v Beaumont Property Trust – Court implied an easement to allow
installation of a ventilation system necessary for restaurant use.

C. Easements under Wheeldon v Burrows

Where a landowner uses one part of his land to benefit another part, and sells one part, the
buyer may acquire a 'quasi-easement' if it was:

• - Continuous and apparent (e.g., visible pathway or pipe).

• - Necessary for reasonable enjoyment of the land.
• - Used at the time of the grant.

Key Case: Meyers v Charles – Easement implied based on prior use of access road.

3. Statutory Acquisition
Under Section 9 of the Conveyancing Act (Jamaica), rights that were previously
exercised—even as licences—can become easements upon conveyance of land, unless
expressly excluded.

Key Case: Wright v Macadam – Tenant gained an easement to use a shed previously granted
by permission.

4. Prescription
Easements can be acquired by long, uninterrupted, and open use over a specific period,
generally 20 years.

Requirements:

• - As of right (nec vi – without force, nec clam – without secrecy, nec precario –
without permission).
• - Continuous use appropriate to the type of easement.
• - Use by or on behalf of a fee simple owner.

Key Cases:

- Dalton v Angus – Prescription justified through long and known use with owner’s
acquiescence.

- Hart v Pierce – Court accepted right of way to a beach despite path uncertainty.

IRAC Analysis – Key Easement Cases

Re Ellenborough Park [1955]
Issue
Whether the residents had a valid easement to use the communal park.

Rule
For a valid easement, there must be a dominant and servient tenement, accommodation of
the dominant tenement, separate ownership, and a right capable of forming the subject of a
grant.

Application
The court found that the residents of surrounding homes had the benefit of the communal
park, which was closely linked to their enjoyment of the properties.

Conclusion
A valid easement was established.

Hill v Tupper (1863)

Issue
Whether the exclusive right to place boats on a canal was an easement.

Rule
An easement must benefit the land, not confer a mere personal advantage.

Application
The right to use the canal for business did not benefit the land itself, only the business.

Conclusion
The court held it was a licence, not an easement.
Copeland v Greenhalf (1952)
Issue
Whether storing vehicles on a strip of land amounted to an easement.

Rule
An easement cannot give rights tantamount to possession of the servient land.

Application
The use claimed was so extensive it amounted to joint occupation.

Conclusion
Not an easement – the claim failed.

Wong v Beaumont Property Trust (1965)

Facts

Wong, the tenant of the property had covenanted the property into a restaurant. Three
cellars were let to control and eliminate smells and odours caused by the restaurant so they
did not cause annoyance to the landlord. Beaumont had complained about the smells of the
restaurant and an inspection determined that ducts should be installed as part of a proper
ventilation system. A duct was required to be fitted to the outside wall of the landlord’s
property. The landlord refused to grant access to Wong to install the vent.

Issue
Whether an easement could be implied to install a ventilation duct.

Rule
An easement may be implied if necessary to fulfil the common intention of the parties.

Application
The duct was necessary to comply with health regulations and the purpose of the lease.

Conclusion
The landlord had consented to the use of the premise as a restaurant and therefore, even
though there was no term in the contract or easement for such an installation, Wong had
established an easement of necessity. Wong was entitled to gain access to the property for
the purposes of constructing, maintaining and repairing a ventilation system for use in
connection with the restaurant.

An easement was implied.

Dalton v Angus (1881)

Issue
Whether long-standing support to a building amounted to an easement by prescription.
Rule
Easements may be acquired by long, uninterrupted, and known use without objection by
the servient owner.

Application
The wall had been supported without interruption and with the owner’s knowledge.

Conclusion
The court recognised a prescriptive easement.

Hart v Pierce (2010)

Issue
Whether a right of way to a beach could be recognised despite uncertain path.

Rule
Prescriptive rights do not fail for lack of precision if the usage path is reasonably
ascertainable.

Application
Plaintiff had used a path to access the beach for many years.

Conclusion
Right of way recognised; exact path not fatal.

Wheeldon v Burrows (1879)

Issue
Whether a buyer of land could acquire quasi-easements used before the sale.

Rule
Quasi-easements pass to a buyer if they are continuous, apparent, and necessary for
reasonable enjoyment, and used at the time of grant.

Application
The buyer was using paths the seller had previously used; criteria were met.

Conclusion
Easement implied under the rule.

White v Grand Hotel

Issue
Whether an express right of way was limited to private use only.
Rule
An express easement is interpreted based on the deed’s language and not necessarily
limited to existing use.

Application
The property changed from private residence to hotel, but the right of way remained
applicable.

Conclusion
The easement extended to the hotel use.

Lush v Duprey TT 1966 CA 65 – Easement of Necessity

Question 1:
J, the owner of Lot A, has for over 25 years driven across Lot B (owned by K) to access the
main road. Recently, K erected a gate preventing J’s access. J sues claiming an easement of
way. Advise J.

Answer:
To determine whether J has a legal easement of way, we examine whether such a right has
been acquired by prescription, which is a form of implied acquisition through long,
continuous, and non-consensual use.

Legal Rule: Under the doctrine of prescription (Prescription Act and common law), an
easement may be acquired if the use is:

• - Without force
• - Without secrecy
• - Without permission
• - Continuous for at least 20 years

Application: J has used the path over Lot B for 25 years. There is no indication that this was
done by force, in secret, or with K’s permission. Therefore, J's use qualifies as being 'as of
right'.

Dalton v Angus (1881) supports this. In that case, the claimant had received support from a
neighboring structure for a lengthy period. The court held that the long, open, and
uninterrupted use raised a presumption of an easement by prescription. Similarly, J's long
use creates such a presumption.

Hart v Pierce (2010) further strengthens J’s case. There, the court upheld a right of way to a
beach, despite uncertainty over the path, as long as the general use was continuous. This
shows that even some ambiguity in pathway or variation in use won’t defeat a prescriptive
easement.

Conclusion: J is likely to succeed in claiming an easement of way over Lot B. The gate
erected by K constitutes interference with a valid easement and may be restrained by an
injunction.
Question 2:
X, the owner of two adjoining plots, sells one (Plot A) but continues to use the retained plot
(Plot B) for parking, crossing over Plot A. The buyer of Plot A later erects a fence. X claims
an easement. Advise the parties.

Answer:
This question concerns whether X has retained an easement after the sale of Plot A, which
would allow him to use it for access to Plot B.

Legal Rule: Generally, when a vendor sells part of his land, he may retain an easement only
if:

• - It is expressly reserved in the conveyance

• - It is an easement of necessity (landlocked situation)
• - It is an intended easement required for the use of the retained land

Application: X did not expressly reserve any rights in the sale. Plot B is not landlocked and
there is no clear evidence that access across Plot A was essential or agreed upon as part of
the transaction. Therefore, the only potential route is through implication.

Wheeldon v Burrows (1879) does not assist X. This case allows buyers (not sellers) to
receive easements that were used by the seller, provided they were continuous, apparent,
and necessary for enjoyment. As X is the seller, this rule does not apply to him.

In Wong v Beaumont Property Trust (1965), an easement was implied based on the clear
necessity of installing a ventilation system to comply with health regulations and fulfill the
lease’s intended use. Here, there is no such necessity or agreement between the parties.

Conclusion: X likely does not have a valid easement. The buyer of Plot A is within their
rights to restrict access. Any continued use by X after the sale without a legal right may
amount to trespass.