Key characteristic of Easement
Easement allows a landowner the right to use the land belonging to another.
There could be a positive action such as the right to use the path over neighbouring land or just a negative action such as the right to light.
Easement is not a right for personal use but attaches to the pieces of the land.
Re Ellenborough Park (1956) defining the characteristic of easement.
There should be a dominant tenement and servient tenement.
Dominant tenement - the land to take / receive the benefit.
Servient tenement - the land to suffer the burden.
The easement should accommodate the dominant tenement.
"Accommodate" means that easement must benefit the land but not for the benefit of the land owner personally such as in Moddy v Steggles (1879) and Hills v Tupper (1863).
The easement should exists for the comfortable and reasonable enjoyment of the dominant tenement such as in Moncrieff v Jamieson and Others (2007) Lord Hope.
In Bailey v Stephen (1862) the two plot of land should be reasonably close to each other.
The servient and dominant tenements must be owed by different persons. You cannot have an easement over your own land but a tenant able to have an easement over the landlord's land.
The capability of the easement to form a subject matter of the grant may include :
-the present of capable grantor and grantee.
Grantor - the person who can grant
Grantee - the person who receive the benefit
The easement must be definite.
The rights of good view is not definite ( Aldred's case) (1610)
The rights of good television's signal reception is also not definite ( Hunter v Canary Wharf ( 1997)
The nature of the rights must fall within the general nature of the rights recognised as traditional as easement ( Dye v Lady James Hay (1852)).
The rights should not depriving the servient owner from the used and enjoyment of his property.
Lord Scott in Moncrieff v Jamieson ( 2007), stated that the main issues is not whether the easement alleged permits the reasonable used of the land by the servient owner, but the easement permits the servient owner possession and control of the land.
Easement may not affect or prevent the landowner use of land but an easement may still be upheld if it limit severely the use of servient land owner property as in Virdi v Chana and another (2008).