Published: Fri, 12 Oct 2018
Re Ellenborough Park  EWCA Civ 4
The necessary requirements for granting an easement
The titular park area, Ellenborough Park, was a park in Weston-super-Mare which was owned jointly by two tenants. The park also stood opposite a row of houses. The owners sold parts of the Park so that more houses could be built. Along with the sale, the builders received rights to enjoy the remaining parkland. Specifically, they had the right to “the full enjoyment at all times hereafter in common pleasure of the ground”. The owners of the houses which had those attached rights applied to have their rights recognised as an easement. This was because some of the parkland was requisitioned by the War Office during World War II and pursuant to the Compensation Defence Act 1939, the people who had property rights in adjacent land were to receive compensation. The claimants needed their rights to be recognised as an easement as this would grant them the necessary property rights, as opposed to a licence which does not imply such rights.
The issue in the case was whether granting someone the use of a park as a part of a purchase create an easement/property right over the park and more generally, what must be present for an easement to exist.
The court granted the easement and outlined the conditions for the granting of an easement. In the leading judgement Evershed MR stated that an easement may be granted as long as: 1) there is a dominant and a servient tenement, 2) the easement must accommodate the dominant tenement (this accommodation must go beyond raising the value of the dominant tenement and the easement must be linked to the use of the dominant tenement), 3) The dominant and servient tenements must have different owners and 4) the right must be capable of being the subject matter of a grant (this is necessary as easements do not physically exists and thus cannot be passed by possession, leaving a grant as the only option. Further, the right must not be purely for recreation – it must have utility.
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