What is an easement?

“Easement” has been a word used in English law since at least 1695. It comes from the old French “aisement”, which means “convenience” or “accommodation”.

An easement is a right for the benefit of one piece of land over other land, usually adjacent, which is in different ownership. So, for example, the owner of land A may have a private right of way over the adjacent land B, which is owned by someone else, in order to reach the public highway.

An easement is a proprietory, not a personal, right and will therefore bind successors to the owner of land B and enure for the benefit of successors to the owner of land A. So, if the owner of land A sells land A, which enjoys a private right of way over land B, the purchaser of land A will acquire the right of way over land B at the same time as acquiring land A.

The owner of the land subject to the easement is said to retain absolute dominion over his land and all the rights of an owner and can use it as he likes, subject to such limitations as are imposed upon it by the existence of the easement. So, using the right of way example, the owner of land B can do whatever he wishes with land B, so long as he does not prevent the enjoyment by the owner of land A of the right of way.

Is a right to park an easement?

Whilst there would seem to the casual observer to be similarities between someone enjoying a right of way over adjoining land in different ownership and enjoying a right to park on the same piece of land, the courts and commentators have struggled to determine whether a right to park is an easement.

On the one hand one would expect a right enjoyed by the owner of land A to park on land B to pass with ownership of land A; but on the other hand an easement, by definition, should not entitle the party who has the benefit of the easement to exclusive possession of the land over which the easement is enjoyed. A party enjoying a right to park, could presumably leave their car parked on the neighbour’s land for several weeks whilst away on holiday, and such action would come pretty close to excluding the owner of the land from possession of it.

Due to the tension involved in a right to park not sitting comfortably within the definition of easement because it effectively excludes the land owner, and yet the need to define the right as an easement so that it may pass to successors in title of the land which benefits, the decided cases – all at first instance – have been decided both ways.

The most recent was Howard John Kettel and others –v- Bloomfold Ltd5 earlier this year, when the court held that where a lease of a flat grants a tenant a right to park in a designated area, an easement will almost certainly be created. The landlord’s argument (he wanted to put a new building on the car park and provide alternative parking spaces elsewhere) that the right to park could not be an easement as it excluded him from any practical use of the land, was rejected. However, since that too was a first instance decision, it has not overturned earlier cases which went the other way, and so the law in this area is unclear.