Easements in English law are certain rights in English land law that a person has over another's land. Rights recognised as easements range from very widespread forms of rights of way, most rights to use service conduits such as telecommunications cables, power supply lines, supply pipes and drains, rights to use communal gardens and rights of light to more strained and novel forms. All types are subject to general rules and constraints. As one of the formalities in English law express, express legal easements must be created by deed.
Some classes, types, of easement are heavily constrained — the courts of England and Wales will only uphold these as easements subject to wide-reaching public policy, chiefly property rights interference, tests they have laid down in precedent. Similar tests apply to the implication of easements. If they fail on any of these tests the right claimed may be interpreted as a "mere" licence, typically a right of use revocable at will. Details of the use, wording and history of certain rights is pivotal. Prime examples of express purported easements which will only be upheld on particular facts are the use of a communal garden with a public dimension,[1] a neighbour's lavatory, or use of parts of another person's land for parking.
In all cases the neighbouring, impacted, "servient" land does not have to be adjoining.[2]
The necessity of easements is shown by the Law Commission's 2008 statistical finding that express easements exist over or under at least 65% of registered freehold titles.[3] In many cases it is impossible for a land owner or tenant to access a public highway without an easement of a right of way over intervening land. The creation of easements is usually done expressly by deed, but easements may be implied where they are necessary, or would be reasonably expected to be held by a land owner, an approach which reduces legal fees but is not altogether uncontroversial, and has been the subject of recent reform proposals.
^Cite error: The named reference ellenborough was invoked but never defined (see the help page).
^Thompson, p. 497
^Law Commission Consultation Paper No. 186, 2008, paragraph 1.3
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