Easements and Profits Creation Lecture

INTRODUCTION

This chapter will discuss the ways in which both easements and profits à prendre may be created. The ways in which they may be created shall be addressed in detail after the terms “easements” and “profits à prendre” are given working definitions. This chapter will be split into two parts: conditions for the creation of easements and profits à prendre, and the mechanics for the creation of easements and profits à prendre.

In the part entitled ‘Conditions’ we shall examine the necessary conditions for the creation of easements and profits à prendre. In other words, what must parties claiming these rights be able to demonstrate?

In the part entitled ‘Mechanics’ we shall first highlight the two principal methods of creating easements and profits à prendre: grant or reservation. These two methods can give rise to rights that exist at law and not only in equity, provided certain conditions are met. Pursuant to these methods, creation may be achieved either expressly, by implication, or presumed, and the extension of any rights indefinitely or for a fixed period or for any other period of time. Finally, we shall see the means of creation can be formal or informal, and that easements and profits à prendre can be created at law or in equity, depending on the circumstances of the creation of the right.

DEFINITIONS OF EASEMENTS AND profits à prendre

Before we examine both of these sections, we shall first give brief definitions of the concepts of easements and profits à prendre, as this will help to understand what is necessary to bring them about, and also how they are distinct from one another.

An easement is either a positive or negative right of use over land that is owned by another. By positive, we mean a right that the right-holder is allowed to exercise on the land. By negative, we mean a right that the right-holder has to prevent the other landowner from acting in a certain manner over that land. The easement benefits the landowner and their land, the so-called “dominant tenement.” The land over which the right is exercised (and there must be land to exercise the right over) is called the “servient tenement.”

The main example of an easement is a right of way. This is a right that the owner of the dominant tenement has to cross over or pass over the land owned by the servient tenement landowner. For example, if A (the dominant tenement holder) has an easement of a right of way over neighbouring land owned by B (the servient tenement holder), then we can say A is able to e.g. walk across or drive across B’s land and B has no legal basis to stop A from doing so provided that A exercises the right in accordance with the wording of the easement. A right to park a motor vehicle on the servient land can also be an easement. In Scotland, a right to park was held to be ancillary to an express servitude of vehicular access on the particular facts (Moncrieff v Jamieson [2007] UKHL 42, where vehicles could reach the boundary but could not be taken onto the dominant land).

Profits à prendre, meanwhile, are to do with the right of one party to take part of the soil, minerals or natural produce that is found on or in land owned by another party (the owner of the servient tenement). This is a right that does not occur in easements. Further, profits à prendre may be attached to a dominant tenement or may exist “in gross”, in which case the holder need not own any land. An easement requires a dominant tenement close enough to benefit, but the parcels need not adjoin.

Profits à prendre entitle the holder to take either a part of the land itself (such as soil or sand) or take parts of things that grow on or in the land (for example, timber or naturally growing grass) or to take living creatures that grow on or in the land or waters within the servient tenement. Water in its natural state cannot be the subject of a profit (Alfred F Beckett Ltd v Lyons [1967] Ch 449, CA).

PART ONE: CONDITIONS

As we have seen following the definitions of easements and profits à prendre, both are proprietary rights over another’s land. Proprietary estoppel is a separate doctrine under which a court may give effect to an assurance of a right over land where there has been detrimental reliance and it would be unconscionable to go back on the assurance (as in Crabb v Arun District Council [1976] Ch 179). 

Given the power this accords to a party claiming to have a valid easement or profit à prendre, the court has set out a number of criteria that must be satisfied in order for an alleged easement to be valid. They were adopted by the Court of Appeal, affirming Danckwerts J, in Re Ellenborough Park [1955] EWCA Civ 4 as follows:

1. There must be both a dominant tenement and a servient tenement,
2. An easement must ‘accommodate’ the dominant tenement,
3. The dominant and servient owners must be different persons, and
4. The right claimed must be capable of forming the subject matter of a grant.

1. There must be a dominant and servient tenement

The two portions of land, must be distinct and sufficiently close for the right over one to benefit the other. We say that the benefit accrues to the dominant land, and the servient land is burdened by the easement or appurtenant profit à prendre (London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157). The reason there must be two distinct parcels of land, each either having the benefit or the burden, is that the rights of easements and appurtenant profits à prendre are “real” rather than “personal” relationships: the rights and liabilities apply to land, not persons. So for example, membership of a golf club does not of itself give a person an easement to play there, because no dominant land is identified (Banstead Downs Golf Club v Customs and Excise Commissioners [1974] VATTR 219, VAT Tr).

A profit in gross needs no dominant tenement. Statute can also create rights without a dominant tenement (see below in the section ‘Legal creation of easements and profits à prendre’).

2. The easement must ‘accommodate’ the dominant tenement

In order for the easement or appurtenant profit à prendre to be valid the right must confer a benefit on the dominant land, not simply the person who owns the dominant land. This may seem an artificial distinction, because land cannot be said, as a matter of common sense, to “enjoy” benefits accruing from easements or profits à prendre. Nevertheless, this aspect of the conditions for easements and appurtenant profits à prendre is that the land itself must be benefited, not least because the right is passed to a transferee of the dominant land.

This requirement of accommodation also underlines the point about the land being sufficiently close for easements: it is for example nonsensical to suggest there can be ‘a right of way over land in Kent appurtenant to an estate in Northumberland’ (Bailey v Stephens (1862) 12 CBNS 91 per Byles J).

Key Points:

• There was a purported agreement alleging an entitlement of “exclusive” use for hiring out boats on the canal.
• Merely alleging this exclusivity did not warrant the creation of an easement with its proprietary rights.
• The right benefited H’s boat-hire business personally. A commercial use can support an easement where the benefit is sufficiently connected with the dominant land.

Alongside this concern that the dominant tenement be accommodated by the easement, there has been some controversy over whether the owner of the dominant tenement may also exercise the rights granted to the dominant tenement over adjacent land owned by the owner of the dominant land. For example, if A has the benefit of an easement for their land, Blackacre, A cannot use it independently for the benefit of the adjacent land also owned by A, Whiteacre.

There is some case law to suggest that the adjacent land (Whiteacre) may benefit from the easement so long as its use is only ‘ancillary’ to the primary benefit which applies to Blackacre (Massey v Boulden [2002] EWCA Civ 1634). It depends on the terms of the grant and the purpose of the use. Access to a garage serving the dominant house was permitted in Gore v Naheed [2017] EWCA Civ 369. Compare Das v Linden Mews Ltd [2002] EWCA Civ 590.

3. The dominant and servient tenements must be owned by different persons

Easements are rights that one person has over land owned by another person; therefore, it is nonsensical to suggest a person has a right of an easement to the benefit and detriment of their own land (Peckham v Ellison (2000) 79 P & CR 276, CA per Cazalet J). That being said, there is a distinction between landlords and tenants. Therefore, tenants can acquire an easement for their leased premises over other land retained by their landlord.

4. Easements and profits à prendre must be capable of forming the subject matter of a grant

The right must be able to be put into a grant by deed. From this point, there are several sub-requirements to comply with in order to satisfy this condition:

1. There must be a capable grantor and capable grantee: The persons who create the easement must both be competent and capable of doing so. An easement can only be created by persons with the leasehold or freehold interests over the land, and no person can seek to create rights that exceed their own proprietary interests (Wall v Collins [2007] EWCA Civ 444).
2. The right must be sufficiently definite: In order for a right to be capable of forming the subject matter of a grant, the alleged easement must be clear in its ambit. Therefore, those rights which are too broadly phrased or ill-defined cannot form the subject matter of a grant. In Hill v Tupper (1863) the difficulty was that the right did not accommodate the land. Nor does English law recognise an easement which grants the alleged dominant tenement owner the right to a good view (Hunter v Canary Wharf [1997] AC 655, HL). A view may be protected by a restrictive covenant that controls construction activities.

A claim by the public at large to wander freely over another’s land is distinct from an easement benefiting identified land (Attorney-General v Antrobus [1905] 2 Ch 188, ChD).

3. The right must be the kind of right normally granted by easements: The categories are not closed. Rights to use recreational facilities, including a golf course and swimming pool, can accommodate holiday accommodation (Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57). Compare the personal monopoly in Hill v Tupper (1863) and the alleged right to hit cricket balls into neighbouring “servient” land (Miller v Jackson [1977] QB 966, CA).

The courts are especially reluctant to implicate novel easements that are negative, meaning those easements which refrain the servient tenement owner from doing something on their land (Hunter v Canary Wharf [1997] per Lord Hope of Craighead). Therefore, an easement requiring protection from the weather has been found to be illegitimate, because such an easement would prohibit entirely lawful development on the “servient” land (Phipps v Pears [1965] 1 QB 76, CA).

4. The right must not impose any positive burden on the servient tenement owner: An easement will typically only require the servient tenement owner to allow the dominant tenement to exercise the right enshrined in the easement without interference, such as the right for the dominant tenement owner to park their vehicle on the servient tenement owner’s land. Following on from this, unless the circumstances are exceptional, an easement cannot require the servient owner to expend money, resources or time in any positive or onerous action (Liverpool City Council v Irwin [1977] AC 239, HL per Lord Wilberforce). Therefore, no easement can be created that requires the servient tenement owner to maintain a supply of water or electricity for example; but equally, the servient tenement owner may be required to not interfere with an existing utilities supply (Duffy v Lamb (1997) 75 P & CR 364, CA).
5. The right cannot deprive the servient owner of all beneficial proprietorship: An easement cannot displace the possessory rights claimed by a servient tenement owner; if a dominant tenement owner intends to take possessory rights over the servient tenement land, they cannot do so by way of an easement, but rather by freehold or leasehold ownership. Rights of easements cannot unduly interfere with the servient owner’s ‘enjoyment of their own land’ (Moncrieff v Jamieson [2007] per Lord Scott of Foscote). The more extensive and far-reaching an alleged easement is, the less likely it is to be upheld by a court, especially where the alleged easement purports to give the dominant tenement owner ‘exclusive and unrestricted use of a piece of land’ (Reilly v Booth (1890) 44 Ch D 12, CA per Lopes LJ). It follows that an easement which purports to allow the servient owner to access their land by invitation only from the dominant tenement owner cannot be a valid easement (Hanina v Morland (2000) 97(47) LSG 41, CA).

This aspect of making the right capable of forming the subject matter of a grant has undergone some formulation throughout case law. On the question of ouster, the English test is whether exercise of the alleged right would ‘leave the servient owner without any reasonable use of his land’ (London & Blenheim Estates v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, affirmed on other grounds [1993] 4 All ER 157). The Court of Appeal applied that test in Batchelor v Marlow [2001] EWCA Civ 1051.

Second, the courts have had some sympathy with this notion, as in Moncrieff v Jamieson [2007] where Lord Scott of Foscote said there was no reason ‘why a landowner should not grant rights of a servitudal [sic] character over his land to any extent that he wishes.’ In that Scottish appeal Lord Scott preferred a test based on the servient owner’s ‘possession and control’ of their land. In England and Wales Batchelor remains binding on lower courts. The Supreme Court has heard the appeal on this issue in Stenner v Teignbridge District Council [2025] UKUT 204 (LC) and judgment is awaited. This principle was reflected in an earlier case in which the court reasoned that a servient owner cannot be left with ‘no more than a shadow of ownership and possession’ (Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525)..

Key Points:

• The relevant portion of land was used almost exclusively by the person claiming to hold the benefit of an easement.
• The right was deemed too far-reaching: it gave the purported dominant owner the ‘whole beneficial user’ of that portion of land.
• Given the way in which the land was used (i.e. to permanently store vehicles as part of the “dominant owner’s” business), the right so claimed amounted to ‘virtually a claim of possession.’

PART TWO: MECHANICS

Grants and Reservations

Grants arise where B creates in favour of A an easement or profit à prendre over the land owned by B. Where the right is an easement, A of course must hold a portion of dominant land that is capable of deriving the benefit of the easement.

Reservations meanwhile occur when the owner of the given land B disposes of part of that land to A, on condition that B will be able to nevertheless exercise an easement or profit over that disposed land. On a sale of part, the buyer may be granted rights over the land retained by the seller, while the seller may reserve rights over the land conveyed. An express reservation of a legal interest takes effect without a regrant by the buyer (Law of Property Act 1925, s.65).

Legal creation of easements and profits à prendre

Unlike with estate contracts, both easements and profits à prendre can be created (and can therefore operate) at law. The creation and operation of such rights at law requires the fulfilment of certain conditions:

1. Status of servient estate: The right must apply against a legal estate in the land, such as a fee simple. If the right is created against an equitable estate, the right invariably and inevitably is equitable only.
2. Duration: An easement or a profit à prendre has to be set out in a manner that is similar to that found in freeholds and leaseholds, i.e. that the entitlement has to be set out ‘for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute’ (Law of Property Act 1925, s.1(2)(a); Land Registration Act 2002, s.27(4) and Schedule 2 paras 6(1), 6(3) and 7(1)(a)).

Given that both these types of rights can exist either “in fee simple absolute” or for a “term of years absolute”, it follows that the rights of easement and profits à prendre may exist for an unlimited and undefined period. What should be noted is that if an easement or profit à prendre is created for an indeterminate period other than in perpetuity, for example if it is expressed to subsist for life rather than indefinitely or for 100 years, then it will take effect in equity only.

3. Mode of creation: In order for an easement or profit à prendre to exist at law it must be created in one of four ways. It must either be created by deed, by statute, by implication, or by prescription. The first three methods are discussed further below. The method of prescription is addressed in the next chapter on Prescription.

Modes of Creation

As mentioned in the above section, an easement or profit à prendre can be rendered as a legal right so long as, inter alia, the easement or profit à prendre is created in one of the approved methods. Prescription is one of those methods but is not discussed here as it is addressed in full in the chapter ‘Acquisition by Prescription.’

1. Deed: An express grant or reservation of a legal easement or profit à prendre ordinarily requires a deed. This is required by the Law of Property Act 1925, which requires (at s.52(1)) that ‘all conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.’ On an express grant or reservation out of registered land, registration is normally also required before the right operates at law (Land Registration Act 2002, s.27(1), (2)(d) and Schedule 2). Separate rules apply to rights registrable under Part 1 of the Commons Act 2006 and to grants within s.27(5A)(b) for relevant social housing tenancies. A specifically enforceable contract to grant the right can create an equitable interest. The contract must normally incorporate all expressly agreed terms in writing and be signed by or on behalf of each party (Law of Property (Miscellaneous Provisions) Act 1989, s.2).
2. Statute: Both easements and profits à prendre are capable of being created by statute. Statute is especially useful for the creation of easements where those rights are created for the benefit of public or private service utilities companies as they maintain and administer supplies of gas, electricity and water. A statute may confer such rights without requiring any dominant tenement. Where s.6 of the Commons Act 2006 is in force, a new right of common granted under that section must be attached to land and registered in the commons register.
3. Implication: An easement may be implied in favour of the transferee of land (that is, the person receiving the transfer). On a transfer of a legal estate an implied easement can take effect at law without separate registration. A right implied in an equitable grant takes effect in equity.

If the land is unregistered, a legal easement or profit à prendre is enforceable automatically against any successors in title of the servient land. On first registration a legal easement or profit à prendre is an overriding interest. On a subsequent registered disposition for value, an unnoted legal right normally overrides if the buyer actually knows of it, it is obvious on a reasonably careful inspection, or it has been exercised in the preceding year. A profit registered under Part 1 of the Commons Act 2006 also overrides (Land Registration Act 2002, Schedules 1 and 3, para 3). Schedule 12, para 9 preserves overriding status for rights which already overrode the registered estate immediately before 13 October 2003. An equitable right should normally be protected by a notice on the registered title or, for an equitable easement created since 1925 over unregistered land, by a Class D(iii) land charge. The types of implied grant can overlap, nevertheless they all retain a central principle: a grantor ‘may not derogate from his grant’, meaning the person making the grant must not substantially deprive the grantee of the benefit granted. The following rules concern principally easements. Section 62 can also pass an appurtenant profit. However, a right cannot be converted into an implied easement if the subject matter does not satisfy the Re Ellenborough Park criteria (see under the section entitled ‘Conditions’).

Implication

There are four kinds of implied easements:

1. Easements of necessity: Such an easement exists where, on division of land in common ownership, the right is strictly necessary for the use of the part conveyed or retained, for example where there is no lawful means of access. The terms of the conveyance may exclude the implication. The threshold for such an easement is high: even if an easement is reasonably necessary for the proper enjoyment of the alleged dominant tenement, the court will not infer an easement of necessity (Adealon International Proprietary Ltd v Merton LBC [2007] EWCA Civ 362).

The court has limited powers to create temporary rights that resemble an easement. The Access to Neighbouring Land Act 1992 provides for an ‘access order’ where works are reasonably necessary for preservation and cannot be carried out, or would be substantially more difficult, without entry. The court must refuse the order if interference with use or enjoyment, or hardship, would make it unreasonable (s.1(1)-(3)).

2. Easements of common intention: An easement may be implied in order to give effect to a prior understanding of the parties. The right must be necessary to carry out the specific use contemplated by both parties at the time of the grant or reservation (Nickerson v Barraclough [1981] Ch 426, CA per Megarry V-C).

Key Points:

• The tenant had entered into a covenant for the restaurant (the dominant land).
• A ventilation duct proved necessary to comply with the covenant.
• The duct had to run up the landlord’s outside wall (the servient land).
• As such, the parties had impliedly shared a common intention, because both parties, in contracting for the lease, would have intended that the tenant be able to comply with the covenants.

3. Quasi-easements (the Wheeldon v Burrows rule): The case of Wheeldon v Burrows (1879) LR 12 Ch D 31 dictates that an easement can apply, from which the grantor cannot derogate, on a subdivision of land. On a grant of part, a use previously made by the common owner for the benefit of the part granted may pass as an easement over the retained land. The rule does not imply a reservation for the seller. Its application to profits à prendre is doubtful.

There are several requirements for establishing the validity of a quasi-easement:

• The use must be ‘continuous and apparent’, for example a regularly used track visible on a careful inspection. There is no fixed minimum period of use (Hansford v Jago [1921] 1 Ch 322);
• The right must have been reasonably necessary for enjoyment of the alleged dominant tenement (Wheeler v JJ Saunders Ltd [1995] 3 WLR 466); and
• Where the owner of the land had previously exercised the right now claimed by the alleged dominant tenement owner, the right needs to have been exercised prior to and up to the date of transfer.

A quasi-easement is advantageous to the owner of such a right for several reasons:

• The buyer can continue a qualifying use even though the conveyance contains no express grant of it.
• The kinds of rights that a quasi-easement provides for include rights of way, support, and light, as well as those rights ‘enjoyed de facto during unity of possession [which] would, had that unity not existed, have been easements’ (Nelson v Walker(1910) 10,CLR 560 (HC of Australia) per Isaacs J).
• The doctrine applies to both legal grants and those grants which only apply in equity (Borman v Griffith [1930] 1 Ch 493).

4. Easements under the Law of Property Act 1925: The word-saving provision of s.62 of the Law of Property Act 1925 is another means of implying an easement or a profit à prendre. That section contains ‘general words’ which, in the absence of any contrary statement or intention included in a given conveyance, will be implied into that conveyance by operation of law. The words enable the holders of existing easements and profits à prendre to continue enjoying the benefit of those rights following conveyance, as well as those ‘liberties, privileges… rights, and advantages’ which relate to the land being conveyed at the date of the conveyance (Kent v Kavanagh [2006] EWCA Civ 162).

One of the significant implications of s.62 is that on a conveyance it can create an easement or appurtenant profit à prendre from quasi-easements and even revocable privileges which are subsisting at the time of the conveyance (Peckham v Ellison (2000) per Cazalet J).

Section 62 tends to be engaged where there has been some ‘diversity of ownership or occupation of the quasi-dominant and quasi-servient tenements prior to the conveyance’ (Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 per Lord Edmund-Davies). A prior separation of occupation can allow a privilege enjoyed with one property over the other to pass (Long v Gowlett [1923] 2 Ch 177). An old easement extinguished by unity of ownership and possession does not automatically revive when the land is divided again (Payne v Inwood(1996) 74 P & CR 42). Even without prior diversity of occupation, a continuous and apparent use enjoyed with the land conveyed can pass under s.62 (Wood v Waddington [2015] EWCA Civ 538). The following case is an example:

Key Points:

• An area of land was transferred by one party to another.
• The property on the given area of land was to be used for the same purpose, i.e. running a hotel.
• The transferees of the land (P&S) had the option of purchasing adjacent land separately but had failed to do so.
• Prior to the transfer, the adjacent river moorings had been used by hotel customers. The evidence of fishing was insufficient.
• Because the rights exercised over that adjacent land had occurred ‘continuously and apparently’, and ‘appertained to’ and were ‘enjoyed with’ the purchased land, the purchasers were deemed to have a right of easement over that adjacent land despite the failure to purchase it.

CREATION OF EASEMENTS: HANDS-ON EXAMPLES

The sections set out above discuss two concepts: the necessary conditions for an easement, and the means by which an easement is created. This section provides a series of problem questions that probe different areas of the matters we have just been examining. The answers to the questions can be found at the bottom of the page, however you are encouraged to attempt to answer the questions first based on your own recall or notes of the topic before looking at the answers.

There are essentially three steps to answering questions relating to easements:

1. The first is the need to identify that the right claimed is alleged to be (or may be interpreted as) an easement or a profit à prendre. Depending on the answer, you will able to determine which of the following questions apply (recalling, for example, that profits à prendre in gross do not require a dominant tenement).
2. The second step is to ask whether the alleged easement or profit à prendre satisfies the Re Ellenborough Park criteria so far as applicable. A profit in gross does not require a dominant tenement or a benefit to one. For an easement the criteria are:
• There must be both a dominant and servient tenement,
• The easement must accommodate the dominant tenement,
• The dominant and servient tenements must be owned by different persons, and
• The right claimed must be capable of forming the subject matter of a grant.
3. The third step is to examine how the right has arisen. It may have arisen by deed or by statute, and you should certainly be aware of these possibilities. However, as you will likely only have one question (or at most two questions) on easements in an exam, the problem question will likely be directed to matters of implied easements. Therefore, if it is an implied easement, recall the four kinds of implied easement:
   • Easements of necessity,
   • Easements of common intention,
   • Quasi-easements as per Wheeldon v Burrows, and
   • Easements as per s.62 of the Law of Property Act 1925.

Q1. Alan purchases the ground floor of a property owned by Business Plc. Business Plc retains control of the floors above. Alan intends to open a restaurant in the newly-purchased portion of the land, and in the course of doing so discovers that he needs to install a special air conditioning unit as required by health and safety regulations. Alan had covenanted to comply with all such regulations at the time of purchase. The air conditioning unit needs some of its wiring to run through the floors owned by Business Plc.

Advise Alan.

Q2. Alan is also looking at setting up his utilities for the restaurant. He notes that Business Plc already have the necessary piping and wiring for water, electricity, and gas for the floors of the building still owned by Business Plc. He could get the utilities installed separately (i.e. without needing access to the floors owned by Business Plc), nevertheless Alan asks Business Plc if they will consider installing similar utilities connections on his behalf through their floors to his restaurant, but Business Plc say it is not their responsibility.

Advise Alan.

Q3. Charlie enjoys the view of the lake from his property, Greenacre. Delia owns the neighbouring plot of land. Delia informs Charlie that she has just received planning permission to construct a new set of houses on her plot of land. When Charlie sees the plans, he realises the houses will disrupt his view. He comes to you for advice, saying he’s sure a lawyer friend told him that he can get an easement to prevent the construction.

Q4. Excavators Inc, based in Northampton are looking to mine new resources as part of their business. They have learned that the water of a particular lake in Cornwall would be especially profitable given its unique properties. They approach the equitable owner of the land on which the lake sits, Francis, to ask if they may be given special permission to take the water from the land.

Advise Francis.

A1. This is a revised version of the case of Wong v Beaumont Property Trust Ltd. In that case, you will recall the court considered implying an easement of common intention: both the parties were taken to have intended that Wong would be able to comply with the relevant regulations, and in the course of such compliance, Wong had to have access to the parts of the land owned by Beaumont. An easement was indeed implied. Alan must show that both parties contemplated restaurant use at the time of purchase and that the wiring through Business Plc’s floors is necessary for that use. Alan’s intention alone would not suffice.

A2. Unlike in Q1, the person with the alleged dominant tenement (Alan) is looking to require the owners of the servient tenement (Business Plc) to actively do something to the servient land rather than simply allow Alan to do something on their land. As you will recall, an easement to pass utilities through another’s land does not oblige the servient owner to install the connections. A separate contractual obligation is possible (compare Liverpool City Council v Irwin). On the facts Business Plc need not carry out the installation.

A3. Charlie is in this instance looking to acquire an easement of retaining a good view of the lake. The problem for Charlie, as per Hunter v Canary Wharf, is that the right is too broad, too ill-defined, and in any event English law recognises no easement of prospect. Planning permission would not, however, override an existing enforceable restrictive covenant. Charlie’s hopes for an easement would therefore fail.

A4. Excavators Inc is looking to take a natural resource from the land. A profit à prendre could be held in gross regardless of the distance from Northampton, but water in its natural state cannot be the subject of a profit (Alfred F Beckett Ltd v Lyons). A right to draw water can be an easement if it benefits identified dominant land. No such land is identified here. The company could seek a licence from the person entitled to authorise access and abstraction. Francis, as equitable owner, cannot alone grant a legal interest binding the land. Abstraction in Cornwall normally also requires an Environment Agency licence if more than 20 cubic metres a day is taken (Water Resources Act 1991, ss.24 and 27).

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