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Define Easements and Differentiate It With License?

An easement is a non-exclusive right granted by the owner of a servient tenement to the owner of a dominant tenement to use the servient land for a specific purpose. There must be separate ownership of the dominant and servient tenements, the use must benefit the dominant land, and the right must be capable of being granted. An easement runs with the land and is a legal interest, unlike a license which is personal and can be revoked. Key differences between an easement and license include specificity of the area, ability to make improvements, and payment of consideration.

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86 views4 pages

Define Easements and Differentiate It With License?

An easement is a non-exclusive right granted by the owner of a servient tenement to the owner of a dominant tenement to use the servient land for a specific purpose. There must be separate ownership of the dominant and servient tenements, the use must benefit the dominant land, and the right must be capable of being granted. An easement runs with the land and is a legal interest, unlike a license which is personal and can be revoked. Key differences between an easement and license include specificity of the area, ability to make improvements, and payment of consideration.

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DEFINE EASEMENTS AND DIFFERENTIATE IT WITH LICENSE?

An easement is a right granted by an owner of land (servient tenement) to the owner


of a parcel of land for the benefit of the land (dominant tenement) to enter and use
the land for a non-exclusive purpose, example, a right of way by the owner of a
dominant tenement over the servient tenement.

There are four (4) essential conditions required to be satisfied in order to create an
easement.

1. There must be a dominant tenement and a servient tenement.


a. A dominant tenement is lands for the benefit of which an easement exists.
b. A servient tenement is lands which are subject to the burden of an
easement existing for another parcel of land.
2. A dominant tenement and servient tenement should not be owned by the
same person, that is, there must be separate ownership. If two parcels of land
are owned by the same person then an easement cannot be granted over
his/her own lands. However, where a person owns separate parcels of lands
in two capacity, example, in capacity as executor and the other as beneficial
owner an easement may be granted as tenements are not owned by the
same person with the same rights.

3. An easement must benefit the lands which are described as the dominant
tenement, that is, it must have a natural connection with the estate being for
its benefit. A right that benefits the registered owner is not an easement.
4. The right, the subject of the easement, must be capable of forming the subject
matter of a grant.

Additional elements

1. The lands need not be contiguous.


2. All owners of the both lands must be a party to the easement. There

must be a capable grantor (capacity to make the grant) and grantee

(capacity to acquire the grant).

3. The easement must specify the land benefiting and burdened by the

easement and any conditions affecting the easement.

4. If an easement is granted or benefiting a life tenant or lessee the

interest cannot extend beyond the interest of the grantor or the

grantee. (It expires on the determination of the life estate or leasehold).

5. An easement may be created in a transfer or lease granting such an


easement. Section 93 of the Registration of Titles Act enables the grant
of a right of way in a transfer by reference to the Third Schedule.

6. The rights created in an easement must be reasonable definite. If

uncertain or vague it might not constitute an easement.

An easement runs with the land which enjoys the benefit, therefore, when the land is
transferred the new owner acquires the benefit. Such easement is a legal estate in
the land unlike a licence which is purely equitable.

EXAMPLES OF AN EASEMENT

 Right of way for pedestrians or motor vehicles; 


 Right to take water from a well or spring; 
 Right of light; 
 Right of air (example along a defined channel); 
 Right to maintain and service utilities; 
 Rights of support of land; 
 Use of a letterbox, lavatory, kitchen 

The category of easements is not closed. It is possible for new easements to


be created. 

Extinguishing an Easement 

An easement may be extinguished by:


1. express release by registration of a transfer releasing the easement;
2. by a order of the court which has the power to modify or extinguish an 

easement;
3. Unity of ownership; 

4. Alteration of the dominant tenement in such a manner that the easement is no


longer necessary;
5. Implied release such as abandonment of an easement;
6. Agreed event or time.

An easement may be varied by both registered owners of the dominant and servient
tenements, the terms of the variation must be expressly stated in the instrument.

Easements by Prescription
Where there has been a long and extended use of land (twenty years; Section 2 of
the Prescription Act) over another person’s land that has the characteristics of an
easement in theory an easement may be created by prescription. It should be shown
that the servient tenement knew of the easement, was under no disability to object
and did not take the steps to prevent the exercise of the easements.

If the registered owners wish to have the right recorded on the Certificate of Title it
may be necessary for them to apply to the courts to have the easement defined in
terms of the nature and extent of the easements. (Section 9 of the Prescription Act).

Differentiate between easement and License

 Designations of the area that the grantee can


use: Because a license is revocable at will, the licensor may
not be specific about the area subject to the license. In
contrast, because an easement is an interest in land, the
statute of frauds may require some specification of the land
subject to the easement.

Even if it doesn’t, the grantor of an easement is more likely to


be specific about the grantee’s rights, because the grantor
can’t just change her mind if she’s unhappy with what the
grantee does.

 The right to make improvements: If the grantee has the


right to improve the land somehow, the parties probably
intended to create an easement. A license is more temporary
and less substantial, so the licensee is unlikely to make
investments in the licensor’s land, knowing that the licensor
can revoke permission to use her land anytime.

 Payment of consideration: When the grantee pays


consideration for the grant, it’s more likely an easement. A
grantee is less likely to pay for a license that can be revoked
at any time than to pay for an easement that’s durable and
can’t be taken away at will.

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