EASEMENTS

LAND LAW II
SEMESTER 2
Introduction
 An easement is a proprietary right enjoyed over the
land of another.
 It is a species of property called “incorporeal
hereditaments” in common law or “servitudes” in
Roman law.
 Such property rights recognise that property rights in
land may be fragmented, with smaller rights (e.g. a
right of way) severed from the whole.
 Easements differ from licences in that they are
proprietary in nature and therefore capable of binding
successors in title of the land over which the easements
are granted.
 Easements also differ from licences in that parties are
not free to create any sort of easement they wish:
property rights are subject to the numerus clausus
Introduction
 The classic easement is the right of way.

Right of Way

Public Road
D1 S1
S2

Blackacre Whiteacre
Introduction
 The classic easement is the right of way.

Right of Way

Public Road
D1 S2
S1

Blackacre Whiteacre
Introduction
 Unlike a licence, which is enjoyed by a particular
person,
an easement is annexed to a piece of land.
Right of Way

Public Road
D2
D1 S1

Blackacre Whiteacre
Introduction
 An easement cannot exist in gross (i.e. unsupported
by adjoining land.
Right of Way

Public Road
D1 S1

Blackacre Whiteacre
Introduction
 The land to which the easement is annexed is called
the dominant tenement.
Right of Way

Public Road
D1 S1

Blackacre Whiteacre
(Dominant Tenement)
Introduction
 The land which is burdened by the easement is called
the servient tenement.
Right of Way

Public Road
D1 S1

Blackacre Whiteacre
(Dominant Tenement) (Servient Tenement)
Introduction
 Easements may either be positive or negative.
 A positive easement allows the owner of the dominant
tenement to exercise some right over the servient
tenement.
 Examples include rights of way, rights of drainage, a
right to park, a right to erect a sign etc.
 A negative easement, on the other hand, does not
allow the owner of the dominant tenement to exercise
any rights over the servient tenement.
 Rather, it confers a right on the owner of the dominant
tenement to prevent the owner of the servient
tenement from using his land in a particular way.
 Examples include the right of support (for buildings),
rights to light, rights to air etc.
Introduction
 There is some overlap between negative easements
and restrictive covenants and it is sometimes possible
to use either device to achieve a particular objective.

Covenants
Restrictive
+v -ve
e

Easements
Introduction
 For example, if a landowner wished to preserve his
sea view, he could either bargain for the grant of a
negative easement from his neighbour in the form of a
right to light or a restrictive covenant prohibiting his
neighbour from building beyond a certain height.
Introduction
 There are some advantages to using an easement
over a restrictive covenant.
 Restrictive covenants only bind successive servient
owners in equity and so are not binding on equity’s
darling whereas easements may be granted at law.
 However, the content of covenants is subject to less
restriction than that of easements.
Introduction
 For example, Henderson Land Development outbid the
other major developers (including Sun Hung Kai
Properties, CK Asset Holdings and Wharf; a team-up of
MTR Corporation and Chinachem Group; and a
consortium of Sino Land, Great Eagle Holdings and
China Merchants Group) for a much coveted plot of
harbourfront land in Central.
Introduction
 Henderson Land Development’s bid of HK$50.8 billion
was almost 37% higher than the next highest bid of
HK$37.1 billion, with the other four bids failing to even
meet the Government’s reserve price.
 At the time of the bid, the
plot of land directly in front
of the land acquired by
Henderson Land
Development was Hutchison
House, which was some 23-
storey tall, which would
leave the planned 36 storey,
190 m tall The Henderson
with many storeys of
unblocked harbour view.
Introduction
 Unfortunately for Henderson Land Development, CK
Asset Holdings decided to redevelop Hutchison House,
directly in front of that land, into the 198m Cheung
Kong Center II, which completely obscures The
Henderson’s direct views of the harbour.
Introduction
 Unfortunately for Henderson Land Development, CK
Asset Holdings decided to redevelop Hutchison House,
directly in front of that land, into the 198m Cheung
Kong Center II, which completely obscures The
Henderson’s direct views of the harbour.
Introduction
 Unfortunately for Henderson Land Development, CK
Asset Holdings decided to redevelop Hutchison House,
directly in front of that land, into the 198m Cheung
Kong Center II, which completely obscures The
Henderson’s direct views of the harbour.
Introduction
 It also unfortunately obscures views of The Henderson
from the harbour.
Introduction
 One of the key considerations in the law of easements
(and numerus clausus more generally) is the concern
to prevent the excessive fragmentation of rights to
land, thereby sterilising it.
 “Incidents of a novel kind cannot be devised and
attached to property, at the fancy or caprice of any
owner.”: Keppell v Bailey (1834) 2 My & K 517.
 In the law and economics tradition, this is often
expressed as the tragedy of the anti-commons:
Michael A Heller, “The Tragedy of the Anticommons:
Property in the Transition from Marx to Markets”
(1998) 111 Harv L Rev 621.
 In Hong Kong, the law relating to restrictive covenants
has been extended by statute (specifically s 41(3) of
the Conveyancing and Property Ordinance (Cap 219))
to positive covenants for the purpose of regulating
Introduction
 However, there is no similar overlap between positive
covenants and positive easements.

Covenants
Covenants
Restrictive

Positive
+v -ve
e

Easements
Introduction
 The leading case establishing the essential
characteristics of an easement is Re Ellenborough
Park [1956] Ch 131.
 Ellenborough Park was a 7.5 acre park in Weston-
super-Mare, Somerset.
Introduction
 The larger park had been owned by two tenants in
common who sold off outlying parts for the building of
houses.
 When these houses were sold,
the purchasers and their
successors in title were given
a right to use Ellenborough
Park as a pleasure ground
subject to the payment of a
proportion of the maintenance
 costs.
During WWII, Ellenborough Park was requisitioned by
the government so that it could not be used by the
owners of those houses.
 The question arose whether they were entitled to
compensation in addition to the owners of the Park
Introduction
 The owners would be entitled to
compensation if their rights to use
the park amounted to easements.
 According to Lord Evershed MR,
the four characteristics of an
easement were:
1. there must be a dominant and
servient tenement;
2. the owners of the dominant and
servient tenement must be
different persons;
3. the right must accommodate the dominant tenement;
and
4. the right must be capable of forming the subject
matter of a grant.
Dominant & Servient
Land

An easement cannot exist in gross. It must be annexed
to another piece of land.
 In London & Blenheim Estates Ltd v Ladbroke Retail
Parks Ltd [1994] 1 WLR 31, the plaintiff bought land
together with a right to park on land retained by the
vendor.

 The transfer included a schedule which defined the

“transferred land” as including any other land if such
land was capable of being benefited by the rights
granted, if notice was given to the transferor within five
years of the date of the transfer and if at the date of the
notice the transferee was the registered proprietor of,
Dominant & Servient
Land

The plaintiff subsequently purchased additional
leasehold land and claimed that the additional land
likewise enjoyed a similar right to park on the retained
land.
 The plaintiff’s claim that the schedule created an
easement in favour of the additional land failed
because the dominant tenement had to exist at the
time of the grant.
 Although the schedule could operate as a contract
akin to an option, such a contract could not amount to
an estate contract within the Land Charges Act 1972.
 Until the additional land is nominated by the plaintiff,
no interest in land arises which is capable of binding
the servient land.
Separate Ownership
 The dominant and servient tenements must be owned
by different persons. An easement is a right in alieno
solo.
Right of Way

Public Road
D1 S1

Blackacre Whiteacre
Separate Ownership
 “[Y]ou cannot have an easement over your own land”:
Metropolitan Railway Co v Fowler [1892] 1 QB 165.
Right of Way

Public Road
D1 D1
S1

Blackacre Whiteacre
Separate Ownership
 But a lease (or sub-lease) will effectively establish
such separate ownership for its duration.
Right of Way (3
Yrs)

Public Road
D1 T (3
D1Yrs)

Blackacre Whiteacre
Accommodation
 The right must accommodate the dominant tenement
in order to constitute an easement.
 In order to satisfy the requirement of accommodation,
the two plots of land must be proximate but need not
be contiguous.
Right of Way

Blackacre Whiteacre Greenacre Brownacre

 Thus, in Re Ellenborough Park [1956] Ch 131, the fact

that some of the houses sold were not adjacent to the
Accommodation
 Nevertheless, the greater the physical separation of
the two plots of land, the more difficult it will be to
support the claim that the right actually does
accommodate the dominant tenement.
 “[Y]ou cannot have a right
of way over land in Kent
appurtenant to an estate in
Northumberland”: Bailey v
Stephens (1862) 12 CB NS
91.
Accommodation
 Beyond the question of proximity, the requirement of
accommodation is not always easily determined.
 In some ways, there is a similar uncertainty to the
requirement of accommodation connotes that can be
found in the requirement of touching and concerning
land.
 This is best illustrated by contrasting two cases, Hill v
Tupper (1863) 2 H & C 121 and Moody v Steggles
(1879) LR 12 Ch D 261.
 In Moody v Steggles
(1879) LR 12 Ch D 261,
the plaintiff owner of a
public house claimed as
an easement a right to
fix a signboard on the
wall of the defendant’s
Accommodation
 The court held that the right to hang a signboard could
exist as an easement and it was no objection that the
easement benefited the business conducted on the
dominant tenement.
 By contrast, in Hill v Tupper (1863) 2 H & C 121, a
company that owned a canal leased land on its bank
to the plaintiff and granted him the sole and exclusive
right to put pleasure boats on the canal.
 The court here held that
the right claimed was
merely a licence as it was
“unconnected with the
use and enjoyment of
land.”
Subject Matter of Grant
 Finally, for a right to amount to an easement, it must
be capable of forming the subject matter of a grant.
 There is perhaps no requirement more opaque than
this one.
 As Evershed MR observed in Re Ellenborough Park
[1956] Ch 131:
“The exact significance of this fourth and last
condition is, at first sight perhaps, not entirely clear.”
 According to Lord Briggs JSC in
Regency Villas Title Ltd v Diamond
Resorts (Europe) Ltd [2018] 3 WLR
1603:
“[I]t has come to be a repository for a
series of miscellaneous requirements
which have been held to be essential
Subject Matter of Grant
 As his Lordship elaborated:
“They include the requirements
[(i)] that the right is defined in sufficiently clear terms,
[(ii)] that it is not purely precarious, so as liable to be
taken away at the whim of the servient owner,
[(iii)] that the right is not so extensive or invasive as to
oust the servient owner from the enjoyment or control
of the servient tenement, and
[(iv)] that the right should not impose upon the
servient owner obligations to expend money or do
anything beyond mere passivity.”
 It used to be thought that this requirement also meant
that a “mere right of recreation and amusement”
which conferred no quality of utility or benefit could
not be an easement but this appears no longer to be
Subject Matter of Grant
 The former objection to recreational easements are
now addressed through consideration of whether the
right accommodates the dominant tenement.
 This is because “the advantages to be gained from
recreational and sporting activities are now so
universally regarded as being of real utility and benefit
to human beings that the pejorative expression ‘mere
right of recreation and amusement, possessing no
quality of utility or benefit’ has become a contradiction
in terms, viewed separately from the issues as to
accommodation of the dominant tenement.”
 According to Lord Briggs JSC: “These requirements
serve a common public policy purpose, namely to
prevent freehold land being permanently encumbered
by proprietary restrictions and obligations which
inhibit its utility to an unacceptable degree.”
Capable Grantor/Grantee
 There can be no easement if at the relevant time the
servient tenement was owned by a person incapable
of granting an easement.
 This requirement is obvious in the case of consensual
grants. Thus, in Quicke v Chapman [1903] 1 Ch 659, a
licensee at the time of the implied grant was held to
be incapable of being a grantor.
 In certain types of implied easements, this
requirement is less obvious.
 An incapable grantee is equally fatal to a claim to an
easement.
 Thus, in National Guaranteed Manure Co Ltd v Donald
(1859) 4 H&N 8, the claim to an easement failed
because the company had no power to acquire
easements.
Certainty
 In order for a right to be considered capable of
forming the subject matter of a grant, it must be
sufficiently certainly described.
 Thus, it is said that there cannot be an easement of
prospect or view because it is too vague and cannot
be defined: William Aldred’s Case (1610) 9 Co Rep 57.
 A similar result can be
achieved using an easement
by claiming a right to light
through defined channels or
apertures (i.e. windows) in a
building: Lavet v Gas Light &
Coke Co [1919] 1 Ch 24.
 Alternatively, it is possible to achieve such a result
through the use of a restrictive covenant preventing
one’s neighbour from building so as to obstruct the
Extensiveness
 An easement must be exercised
“reasonably and without undue
interference with the servient
owner’s enjoyment of his own land”:
Moncrieff v Jamieson [2007] 1 WLR
2620 per Lord Scott.
 Simply put, the easement must not
oust the servient owner. It cannot be
“inconsistent with the continued
beneficial ownership of the servient
land by the servient proprietor”: Moncrieff v Jamieson
[2007] 1 WLR 2620 per Lord Scott.
Extensiveness
 This requirement can give rise to problems where the
easement involves the use of the servient land for
some form of storage.
 Most famously, in Copeland v Greenhalf [1952] Ch
488, access to an orchard and adjoining house was via
a strip of land. The defendant neighbour claimed an
easement to park cars on the strip of land whilst they
awaited repairs.
 Upjohn J rejected the
claim on the basis that
“[i]t is virtually a claim
to possession of the
servient tenement, if
necessary to the
exclusion of the owner;
or at any rate, to a joint
Extensiveness
 Nevertheless, rights of storage are a well-recognised
category of easements.
 In Wright v Macadam [1949] 2
KB 744, a right to store coal
was recognized as an
easement.
 In Yim Yip Kae v Kwong Hock
Cheong Sawmilling & Co Ltd
[1954] MLJ 21, a right to store
logs was recognised as an
easement.
 In AG of Southern Nigeria v
Holt & Co (Liverpool) Ltd
[1915] AC 599, a right to store
trade goods was recognised as
Extensiveness
 It has been suggested that it is a matter of degree.
 Hence, in Grigsby v Melville [1973] 1 All ER 385, a
right of storage in a cellar was rejected as an
easement because it amounted on the facts to an
exclusive use of the whole space.
 So far as the right to park is concerned, it is notable
that it had been recognised as such by the courts in
London and Blenheim Estates Ltd v Ladbroke Retail
Parks Ltd [1993] 1 All ER 307; on appeal [1994] 1 WLR
31.
 In Moncrieff v Jamieson [2007] 1 WLR 2620, a majority
of the House of Lords considered that the right to park
could be an easement. The minority reserved their
opinion.
Passivity
 An easement cannot impose upon the servient owner
obligations to expend money or do anything beyond
mere passivity.
 Thus, if a right of way were granted, the servient
owner cannot be obliged to maintain it.
 Rather, the dominant owner is permitted to maintain
the easement through the exercise of what is
sometimes called a step-in right.
 The only exception to this
requirement seems to be the
right of fencing acquired
through prescription, where the
servient owner is obliged to
maintain the fence: Crow v
Wood [1971] 1 QB 77.
Jus Spatiandi?
 It used to be thought that a jus spatiandi (a right to
walk about at pleasure) was incapable of being an
easement: International Tea Stores Co v Hobbs [1903]
2 Ch 165; AG v Antrobus [1905] 2 Ch 188.
 In Re Ellenborough Park [1956] Ch 131, Evershed MR
remarked:
“[T]he exact characteristics of the jus spatiandi
mentioned by the Roman lawyers has to be
considered. It by no means follows that the kind of
right which is here in question, arising out of a method
of urban development that would not have been
known to Roman lawyers, can in any case be said to
fall within its scope. And, in any event, its validity
must depend, in our judgment, upon a consideration
of the qualities which must now be attributed to all
easements by the law relating to easements as it has
now developed in England.”
Jus Spatiandi?
 In Regency Villas Title Ltd v Diamond Resorts (Europe)
Ltd [2018] 3 WLR 1603, the final nail appears to have
been delivered.
 A large country estate that was the
former home of Field Marshal Lord
Kitchener of Khartoum, Broome
Park, was subdivided and
subsequently developed.
 The main mansion house and its
surrounding land was converted into
a country club comprising
recreational facilities on the mansion
house’s lower floors and leasehold
timeshare apartments above, as well
as a golf course and other outdoor
leisure and sporting facilities in the
surrounding parkland.
Jus Spatiandi?
 A much smaller house
on the estate, Elham
House, and its
surrounding land was,
after the early success
of the redevelopment of
the mansion house,
acquired for
redevelopment into
timeshare apartments
 for sale.
This development, called Regency Villas, was sold on a
freehold rather than leasehold basis, unlike the
timeshare apartments within the mansion house.
Jus Spatiandi?
 Elham House was
transferred
together with a
grant of rights
over the swimming
pool, golf course,
squash courts,
tennis courts, the
ground and
basement floors of
the sporting or
recreational
facilities on the
alleged servient
tenement, the so-
called facilities
grant.
Jus Spatiandi?
 Following funding problems, some of these facilities
were withdrawn and the owners of the alleged
servient tenement ultimately alleged that the facilities
grant was incapable of amounting to an easement.
 A majority of the Supreme Court rejected the
argument that the facilities grant was incapable of
amounting to an easement.
 According to Lord Briggs JSC: “the common law
should, as far as possible, accommodate itself to new
types of property ownership and new ways of enjoying
the use of land.”
 This echoes Evershed MR’s exhortation in Re
Ellenborough Park [1956] Ch 131: “The category of
servitudes and easements must alter and expand with
the changes that take place in the circumstances of
mankind”.
Novelty
 As we have seen from both Re Ellenborough Park
[1956] Ch 131 and Regency Villas Title Ltd v Diamond
Resorts (Europe) Ltd [2018] 3 WLR 1603, novelty in
itself is not fatal.
 In Lawrence v Fen Tigers Ltd [2014] 2 All ER 622, the
right to carry on a noisy activity (using land for racing)
was regarded as being capable of being the subject-
matter of an easement.
 But a right to name a building is not an easement:
Supreme Honour Development Ltd (Li & Fung
(Properties) Ltd, Third Party) v Lamaya Ltd [1990] 2
HKLR 294.
Novelty
 Conversely, where negative easements are concerned,
the courts are reluctant to admit of new easements.
 Thus, in Phipps v Pears [1965] 1 QB 76, the court held
that there was no easement of protection from
weather.
 In Hunter v Canary Wharf Ltd [1997] 2 WLR 684, an
easement to receive radio and television signals was
likewise rejected.
Core Readings:
 SH Goo & Alice Lee, Land Law in Hong Kong, 5th
edition, [12-01]-[12-31]