# Easements: the essential characteristics

> **Key takeaway:** Capable of being an easement? Re Ellenborough Park four characteristics: dominant/servient tenements; accommodates dominant land; diverse ownership; capable of grant (certainty; not exclusive possession; recognised subject matter). Recreational rights can qualify (Regency Villas). Then separately prove acquisition and priority.

- **Jurisdiction:** England & Wales
- **Practice area:** Property
- **Last reviewed:** 2026-08-04
- **Interactive page:** https://kttclegal.info/library/notes/Property/easements-elements
- **Keywords:** easements, Re Ellenborough Park, dominant tenement, servient tenement, right of way, Regency Villas, Copeland v Greenhalf, capable of grant

## What is this about?

An easement is a proprietary right enjoyed by the owner of one parcel of land (the dominant tenement) over another (the servient tenement) — for example a right of way, right to light, or right of drainage. Whether a claimed right is capable of being an easement (as opposed to a licence, purely personal covenant, or public right) is still tested against the classic Re Ellenborough Park characteristics, before separate rules on acquisition (express grant/reservation, implication, prescription) and registration priority are applied.

## What is the core rule?

A right is capable of being an easement only if: (1) there is a dominant and a servient tenement; (2) the right accommodates (benefits) the dominant tenement; (3) the dominant and servient owners are different persons; and (4) the right is capable of forming the subject matter of a grant (sufficiently definite, not too wide a claim to possession, and not pure recreation without the required connection to land use — as refined in the authorities following Re Ellenborough Park).

## What are the elements or test?

1. Dominant and servient tenement: two parcels of land; the right is appurtenant to land, not a free-floating personal benefit
2. Accommodation: the right benefits the dominant land as such (not merely the owner's personal commercial interests unconnected with that land)
3. Diversity of ownership: the same person cannot generally have an easement over their own land (though quasi-easements may become easements on later severance)
4. Capable of grant: the right must be sufficiently certain; must not amount to joint occupation/exclusive possession of the servient land; and must be the kind of right recognised as grantable (including limits on purely recreational rights)

## Which authorities matter?

- **Re Ellenborough Park [1956] Ch 131** — Court of Appeal's four characteristics of an easement; foundational modern statement.
- **Hill v Tupper (1863) 2 H & C 121** — Classic illustration that a right which merely benefits a business, without accommodating dominant land in the required sense, is not an easement.
- **Copeland v Greenhalf [1952] Ch 488** — A claim that effectively ousts the servient owner from ordinary use of the land may fail as amounting to a claim to possession rather than an easement.
- **Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57, [2019] AC 553** — Supreme Court confirmation that recreational and sporting rights can, in principle, accommodate dominant land and be capable of being easements where the Re Ellenborough criteria are met.

## How does this apply in practice?

This note covers capacity to exist as an easement (the Ellenborough characteristics). It does not detail acquisition by prescription (Prescription Act 1832 / common law / lost modern grant), section 62 LPA 1925, Wheeldon v Burrows implication, or the registration and overriding-interest rules under the LRA 2002. Those are separate analytical steps once capacity is established.

## What are common pitfalls?

- Jumping straight to prescription or implication without checking whether the right is capable of being an easement at all
- Treating any recreational use as automatically incapable of being an easement after Regency Villas
- Drafting a 'right' so extensive it looks like exclusive possession of the servient land (Copeland risk)
- Confusing a personal contractual licence with a proprietary easement binding successors

## When would a practitioner use this?

Relevant in development disputes, access claims, conveyancing title review, and neighbour disputes over rights of way, services, parking, and leisure facilities.

## Quick reference

Capable of being an easement? Re Ellenborough Park four characteristics: dominant/servient tenements; accommodates dominant land; diverse ownership; capable of grant (certainty; not exclusive possession; recognised subject matter). Recreational rights can qualify (Regency Villas). Then separately prove acquisition and priority.

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*Reference material from [KTTC Legal](https://kttclegal.info/), not legal advice. Work product supports instructing solicitors and barristers under their supervision. England & Wales.*