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Easements for SQE1

Part of our SQE1 Land Law guide → View the full SQE1 Land Law guide

24 Apr 2026

Easements are rights over another person's land - such as a right of way or a right of drainage. SQE1 tests whether a right qualifies as an easement, how it was

Easements

Land Law > Easements

Easements are rights over another person's land. They are common (rights of way, drainage, parking) and heavily tested in SQE1. Candidates frequently lose marks by misapplying the Re Ellenborough Park test, by confusing creation methods, or by failing to distinguish easements from other interests like covenants or licences. Understanding easements is essential to Land Law.

What Is Easements in SQE1?

An easement is a right enjoyed by one person (the dominant owner) over the land of another (the servient owner). The classic examples are rights of way, rights to drain water, and rights to park. An easement is a proprietary interest in land that binds successors; it is distinct from a contractual licence (which does not bind successors) and from a restrictive covenant (which restrains conduct rather than conferring positive rights).

The nature and requirements of easements are defined by the leading case, Re Ellenborough Park, which established the test for whether a right qualifies as an easement. In the registered land system, easements can be created by express grant, implied grant, prescription, or statute. Understanding the creation methods and the enforceability against successors is critical to SQE1 analysis. Easements frequently interact with overriding interests, as certain easements are overriding.

Key Principles for SQE1

  • Re Ellenborough Park Test – What Is an Easement?: The test for whether a right qualifies as an easement requires: (1) there must be a dominant and servient tenement; (2) the right must accommodate the dominant tenement (be of practical benefit); (3) the dominant and servient tenements must be in separate ownership or occupation; and (4) the right must be capable of lying in grant (capable of being granted). This four-part test is the foundation of easement analysis and is frequently tested.

  • Dominant and Servient Tenement: The dominant tenement is the land that benefits from the easement; the servient tenement is the land burdened by it. The easement must be granted for the benefit of the dominant tenement, not for the personal benefit of the dominant owner. If the dominant owner moves away, the easement remains with the dominant tenement and benefits the new owner.

  • Accommodation and Practical Benefit: The easement must accommodate the dominant tenement—that is, it must be for the practical benefit of occupying and using that land. A right unconnected to the use of the dominant tenement is not an easement. For example, a right of way accommodates land by providing access; a right to take water accommodates land by providing a utility necessary for occupation.

  • Separate Ownership and Occupation: There must be separate ownership or occupation of the dominant and servient tenements. An owner cannot have an easement over their own land. However, if two tenements are in separate occupation (even under single ownership), an easement can exist between them.

  • Capable of Lying in Grant: The right must be capable of being granted by deed (or by statute, or by long use). This means the right must be sufficiently definite and capable of being described with certainty. Vague or personal rights do not lie in grant and therefore do not qualify as easements.

  • Creation by Express Grant or Implied Grant: An easement can be created expressly by deed. It can also be implied, particularly where s.62 Law of Property Act 1925 applies: on a conveyance of land, rights that were enjoyed with the land and are necessary for its beneficial use are implied to pass. This implicit creation is frequently tested.

  • Creation by Prescription: An easement can be acquired by long use. If a right has been enjoyed openly, as of right (not by permission), and without interruption for 20 years, the right may be registered as an easement by prescription. This is a key method of creating easements and is frequently tested in scenarios where no express grant exists.

  • Easement as an Overriding Interest: In registered land, an easement that was not expressly excluded from the register is an overriding interest and binds a purchaser (Schedule 3 LRA 2002). This means an easement can bind a purchaser even though it is not registered, provided it is not expressly excluded. This is a significant protection for easement holders.

Exam tip

When faced with an easement question in SQE1, first apply the Re Ellenborough Park test: is there a dominant and servient tenement? Does the right accommodate the dominant tenement? Are they separately owned or occupied? Is the right capable of lying in grant? If yes to all four, it may be an easement. Then ask: how was it created? Express grant (deed)? Implied grant (s.62)? Prescription (20 years)? Finally, ask: does it bind the purchaser? If registered, yes. If overriding (and not expressly excluded), yes. If neither, no.

How This Appears in SQE1 Questions

A scenario presents A and B owning adjoining properties. A has used a path over B's land to access a parking area for 25 years without B's permission (but B never objected). A has never had a written grant from B. The question asks whether A has an easement over B's land, and whether it binds B's new owner, C, when C purchases from B. The analysis requires the Re Ellenborough Park test (yes, A has a dominant and servient tenement, the right accommodates A's land, and it lies in grant). The creation is by prescription (25 years of open use as of right). If the easement was expressly excluded from the register, it does not override; otherwise it is an overriding interest and binds C.

This is a classic SQE1 trap.

Common Mistakes Students Make

  • Misapplying the Re Ellenborough Park test – Students often apply only one or two elements of the test without systematically working through all four. All four must be satisfied.
  • Confusing easements with covenants – Easements are positive rights (right to do something); covenants are restrictive (promises not to do something). These are distinct interests with different enforceability rules.
  • Forgetting implied grant under s.62 – When land is conveyed, s.62 may imply rights that were enjoyed with the land. Students often miss this and conclude no easement exists where one is implied.
  • Missing prescription – When no express grant exists but a right has been used for 20 years openly and as of right, prescription may create an easement. Students often fail to consider this method.

Quick Summary

  • Re Ellenborough Park test – four elements – dominant and servient tenement; accommodation of dominant tenement; separate ownership/occupation; capable of lying in grant.
  • Easements are proprietary rights – they bind successors and pass with the dominant tenement.
  • Creation methods: express grant, implied grant (s.62), prescription (20 years), statute
  • In registered land, easements are overriding – unless expressly excluded from the register.
  • Easements are distinct from covenants and licences – which have different enforceability rules.

Want to test this now? Try a few SQE1-style questions below before moving on.

Test Yourself

Test yourself

Quick check questions based on this article.

Question 1

Scenario

A man owns a detached house with a large rear garden that backs onto open farmland. For the past 12 years, the man has regularly walked across a narrow strip of the neighbouring farmer's field to reach a public footpath on the far side. The farmer has been aware of this use for the entire period but has never given express permission or raised any objection. The man recently decided to sell his property and instructed a solicitor to act on his behalf. During the course of the sale, the solicitor discovered that the man's title is registered at the Land Registry. The farmer's field is also registered land. The man has never applied to register any right of way over the farmer's field. The man's solicitor has advised him that he may have acquired a legal easement by prescription. The neighbouring farmer has recently installed a new irrigation system across the strip of land in question. The man is concerned that this irrigation system may obstruct his continued use of the path. The man's property was valued at £425,000 by an independent surveyor last month. The man now seeks advice on whether he has an enforceable easement over the farmer's field.

Which of the following best describes the man's position regarding the claimed easement?

Question 2

Scenario

A company purchased a registered freehold office building from a sole proprietor. Prior to completion, the company's solicitors carried out the usual pre-completion searches at the Land Registry. No entries appeared on the charges register other than the existing mortgage, which was to be discharged on completion. After completion and registration of the transfer, the company discovered that an elderly man had been living in a self-contained flat on the top floor of the building for the past nine years. The elderly man had originally been given permission to occupy the flat by the previous owner and had been paying a monthly sum towards utility costs. The elderly man claims that he has an overriding interest that binds the company as the new registered proprietor. The company's solicitors did not inspect the property prior to completion. The flat has a separate entrance from the main office building. The elderly man receives a state pension and has no other significant income. The company intends to refurbish the entire building for commercial use. The building was purchased for £1.2 million. The company's board approved the purchase at a meeting held two months before exchange of contracts.

Is the elderly man's interest likely to constitute an overriding interest binding on the company?

Question 3

Scenario

A landowner sold part of her garden to a neighbour. The transfer deed did not include any express grant of a right of way. The sold portion of garden is entirely surrounded by the landowner's retained property, with no access to a public road except across the retained land. Before the sale, the neighbour used a specific path across the retained land to reach the road, and the landowner was aware of this. The neighbour has continued to use the path since the purchase. A surveyor has confirmed that there is no other practical means of access to the sold land. The landowner has recently asked the neighbour to stop using the path, arguing that no right of way was granted in the transfer. The neighbour has maintained the path by cutting back vegetation on both sides. The landowner plans to build a swimming pool in the area currently used as the path.

Does the neighbour have a right of way over the path?

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