Nature & Burden Cast
Accommodates Land
An easement must accommodate the land which it benefits. Accommodation refers to enhancements by reason of a connection between the easement and the land concerned. The connection must be with the ordinary use of the land benefited. This may be a residential, business or other use.
The fact that the rights enhance the value of the property benefited is a significant but not necessarily decisive, as to whether it is capable of being an easement at law. The right may not be merely personal. A private contractual right might enhance the value of the land, but might not be related to the use of the land itself. The rights granted by an easement must be connected with the natural enjoyment of the property.
There is no requirement that the easement benefits the land benefited, the so-called dominant easement, exclusively. It may benefit several properties.
Dominant and Servient Properties
Generally, the land benefited needs to be sufficiently close to the subject matter of the easement, in order meaningfully, to benefit it. It need not be contiguous or adjoining. The nature of the rights granted by the easement will determine the extent of proximity required.
There must be different owners of the dominant and servient tenement, (the land benefited and the land that is subject to the easement). A person may not hold a right against himself. If the same person acquires each property, the easement may be extinguished.
Subject Matter of Grant
The final, and often the most difficult requirement, is that the easement must be capable of being the subject of a grant. In effect, this means that it must be capable of being lawfully granted, described and defined in a deed. The right must be capable of being defined in a reasonably certain manner, so as to meet this test.
The fact that it purports to be granted by way of a deed, does not mean that it is sufficiently certain so as to be capable of being so granted. This requirement applies, even if the putative easement arises by prescription and long use.
A right is not capable of being an easement where it
- the right is too vague or too wide;
- is inconsistent with the ownership or possession of the servient owner
- is a right of recreation of personal benefit or utility.
The interpretation of deeds is a matter for the court. A court will ultimately decide, in a case of dispute, as to whether the rights are sufficiently certain, so as to be capable of being the subject of a grant.
Recreational Rights
For many years it appeared that a mere recreational right, without a tangible benefit, could not constitute an easement. It was said that it must be for benefit and utility of a tangible nature, rather than mere recreation or amusement. The courts are reluctant to accept a right to wander generally over land. Such rights may exist as public rights or customary rights only
However, the courts have recognised the categories of easements have not closed They evolve with society. In the very famous case of Re Ellenborough Park in the 1950s, a right to use a common garden or pleasure ground was recognised. In practice, the rights to use gardens are an integral and essential easement of most residential multi-unit development. They must, of course, fulfil the other criteria such as being reasonably proximate to the land benefited etc.
Negative Easements
A negative easement will be more readily recognised, than a positive easement. A positive easement requires action or the expenditure of money. Positive easements will rarely be recognised by long use. They must generally be granted by deed. An exception, to this tendency, is the right to require a neighbour to keep adequate fencing, which has been, historically more readily recognised. However, it has been questioned whether it is properly categorised as an easement.
Most easements which are recognised, are for practical reasons, negative or passive in nature. The land affected and its owner is not subject to a positive burden to do anything or spend money. It generally allows a particular state of affairs, as a right of way, a right of light etc.
Expenditure Requirements
A corresponding aspect of this principle is that an owner is not generally obliged to spend money repairing lands, buildings or other apparatus, the subject of the easement.
Easements of necessity may require expenditure on the part of the servient owner. A similar principle applies under the law of nuisance. There are instances where a person may not let his property go to “rack and ruin”, in the sense that he may incur liability for nuisance to a neighbour if he allows this to happen. The same principle may apply in respect of interference with easements, which is protected by the law of nuisance, in that same way as it protects the occupation and enjoyment of land generally.
Where the right alleged is so extensive as to be inconsistent with the ownership of the land affected (the servient tenement), then it is not capable of being an easement. This is because it leaves insufficient residual ownership rights, with the owner of the servient tenement.
As in the case of positive easements, the courts more readily uphold a wide and burdensome easement granted by deed (and thereby agreed expressly) that one which is claimed to arise by implication or by long use.
Some easements, however, do deprive the owner substantially of the enjoyment of his land. The may in effect sterilise the land in the sense of preventing its development, thereby severely affecting its value. They may leave minimal residual rights of ownership which may be exercised, consistently with the extent of the easement.
Ancillary Rights
The grant of a right carries such ancillary rights as are necessary to maintain the due proper exercise of the right. Therefore, a right to take something from land implies a right to enter the land. A more difficult question is whether and to what extent, an easement, such as a right of way entails a right to enter and repair the servient tenement (the land affected).
The servient owner is not generally obliged to repair the lands the subject of the easement. He may have so undertaken by the terms of a grant or deed, by statute or where he would otherwise incur liability in nuisance, but such a right will not arise by implication or long use.
Where a landlord grants a right of way over common areas to a leased premise, it is generally implied that there is a right to repair and maintain the common access areas. This will generally be implied clearly in the circumstances.
Easements and Covenants
The Irish courts have held that a covenant or obligation may run with an easement, provided that the party who seeks to enforce it
- holds the same estate and rights in the land as the original beneficiary of the covenant;
- he has an interest in the subject matter of the covenant, independent of the covenant and
- the covenant or obligation touches and concerns that interest.
The Irish courts have also held that the covenant may run under the Conveyancing Act “all estate” provision, by which all rights and advantages pass with the transfer of the land.
Repair
The right of the dominant owner to repair the subject matter of the easement is well established. This is a right and is not generally an obligation unless expressly provided as such. For example, the holder of a right of way may clear it of overgrowth. The dominant owner may be entitled to improve the way, in order to make it more suitable, provided this is within the scope of the original grant of easement.
The dominant owner is not generally obliged to repair. However, he may be obliged by the term of the grant. Commonly there will be an obligation to contribute towards the cost of repair, where there are shared facilities. In some cases, the dominant owner may be obliged to take steps to prevent the use of the easement from affecting the servient tenement beyond that contemplated.
Where a state of disrepair would so adversely affect the servient tenement as to deprive its holder of the benefit of his land or his right to use the land concerned, he may be obliged to repair. Where, for example, the dominant owner has a right to use the land for the passage of heavy vehicles, the dominant tenement holder may be obliged to repair the damage done, so that the servient owner can use it for ordinary purposes. In this case, his exceptional use requires him to repair.
References and Sources
Primary Texts
Easements Bland 2nd Edition 2015
Wylie on Irish Land Law Wylie 6th Edition 2020
Land Law In Ireland -Lyall 4th Edition 2018
Principles Of Irish Property Law de Londras 2nd Edition 2011
Equity and the Law of Trusts in Ireland- Keane 3rd Edition
Land Law Kenna & Murphy 2019
Land Law Pearce & Mee 3rd Edition 2011
Other Irish Sources
The Land and Conveyancing Law Reform Act 2009: Annotations and Commentary -Wylie 2nd Edition 2017
Property Legislation 2009 2011 Cannon, Clancy, Kenna 2012
Irish Land Law – A Casebook: Adanan Maddox 2020
A Casebook on Equity and Trusts in Ireland – Wylie
Shorter Guides
Land Law Nutshell Cannon 2020
UK Textbooks
Land law C. Bevan 2nd ed.2020
Land Law: Text, Cases and Materials B McFarlane, N Hopkins and S Nield, (4th ed. OUP 2018)
Property Law R Smith(10th ed., Pearson, 2020)
Cheshire and Burn’s Modern Law of Real Property by Burn, E. H. 2011
Modern Land Law Dixon 2018
Elements of Land Law Gray, 2009
Property law: cases and materials Smith 2015
Land law Cooke 2015