Although land may be owned by one person, sometimes others will enjoy rights that they are entitled to exercise over that land. These are known as easements and they consist of a right to use, or restrict the use of, the land of another person in some way, for example a right of way, a right to light and a right to water flowing through your neighbour’s land.

There are four essential characteristics of easements and if any of these characteristics is missing then the right claimed will not be capable of existing as an easement:

1. - There must be a dominant and a servient tenement, in other words, the right must relate to two separate plots of land.

The dominant tenement is the plot of land whose owner enjoys the right constituted as an easement; His owner enjoys the easement. The servient tenement is the plot of land over which the easement is exercised or the land burdened by the easement; His owner bears the burden of the easement.

The right attaches to the land and not to a person. In order to have an easement, the owner must have an estate in land. An easement cannot exist independently of the land itself. A public right of way is not an easement because there is no dominant tenement.

2. - The easement must accommodate the dominant tenement.

This means that the right must be for the benefit of the land and not merely for the benefit of a person in his personal capacity. If the right can be said to be attached to land then it is assumed that it is for its benefit. The dominant and servient land do not have to adjoin each other but they should be close enough to establish a connection between the two.

3. - Different persons must own the dominant and servient tenements. This means that nobody can have an easement over his own land.

4. - The easement must be capable of forming the subject matter of a grant: there must be a capable grantor and grantee, the right itself must be sufficiently definite, and the right must be in the nature of an easement.

Only a person with a proprietary interest can grant an easement over land; the grantor must be legally capable of making the grant. The grantee must also be capable of acquiring an easement. This means that it must be granted to a definite person or a definite body of persons.

The right itself must not be too vague or uncertain. It must be clear to the grantee and the grantor the exact nature of the rights.

Finally, the right must be within the categories of rights already recognised as easements or very similar to such categories.

The grant of easements

Easements can be granted in a number of different ways (express grant or reservation, implied grant or reservation, and prescription) and created by means of either grant or reservation.

A Grant is made when one landowner creates an easement over his land in favour of his neighbour. A Reservation arises when a landowner transfers part of his land to another but he keeps or reserves himself a right to use part of the land he has sold.

Express Grant

Two neighbouring landowners can expressly agree about rights to be exercised over the others land. This may be incorporated into the formal documentation when land is transferred. Alternatively, it can arise independently of the conveyance of the property.

Occasionally, easements are granted expressly under statute. These are made in favour of some of the utilities that supply essential services such as gas or electricity. In these cases the easement will not accommodate the dominant tenement since there will not be a dominant tenement.

Implied Grant

Sometimes the grant of an easement will be implied or simply inferred in favour of a purchaser of land. These easements will take effect as legal easements. Easements by implied grant can arise in the following ways:

- Necessity: easements of necessity usually arise where the land would be landlocked without the right. The land must be genuinely landlocked, in other words, the dominant tenement must have no access at all. It is not enough merely to show that there is a route but that it is simply inconvenient or a much longer way round. However, the rout must be safe. There is no question of denying such a right where the alternative rout would be dangerous, such as along the edge of a cliff. There is no reason why easements of necessity could not arise in the case of access to property for services but it is generally implied in relation to a right of way. An easement of necessity will only be implied if there would be no enjoyment of the land at all without such an easement.

- Intended easements: Easements may be implied in favour of a transferee in order to give effect to a common intention of the parties. The law is generally more generous in cases of intended easements than in cases of necessity. There are two circumstances when an easement of common intention will be implied: first, if it is necessary for the enjoyment of a right that has been expressly granted; second, if it can be implied from the circumstances in which the grant was made.

Prescription

If a right is exercised over a long period of time then it is possible to claim that the use becomes a legal easement. It is subject to satisfying a number of conditions. The claimant has to show that the easement has been enjoyed for a long period of time, and the easement must be continuous and apparent, what means that its use is discoverable or detectable on a careful inspection by a person ordinarily conversant with the subject.

Extinguishment of Easements

There are a limited number of ways that an easement will come to an end:

- Unity of ownership. If the fee simple of the dominant and servient land is owned by one person, any easements over the servient land will cease.

- Release. The owner of the dominant tenement can release his rights over the servient tenement. The release should be carried out by deed.

- Abandonment. Once the right has been acquired as a legal easement, failure to make use of the right Hill not cause the dominant land to lose the right. However, where there has been no use for over 20 years then abandonment can be presumed unless there was no occasion to use the right.