What Does an Easement Need to Be Legal in the UK? (Easements of Necessity)

For any right to qualify as an enforceable legal easement running with the land in England and Wales, it must satisfy all four historic tests established in *Re Ellenborough Park*:

1. Dominant and Servient Tenements: There must be a piece of land that benefits from the right (dominant) and a piece of land that is burdened by it (servient).

2. Accommodation of the Dominant Land: The right must directly benefit the land itself, rather than granting a purely personal commercial advantage to the current owner.

3. Separate Ownership: The dominant and servient plots cannot be owned and occupied by the same person.

4. Capable of Forming the Subject Matter of a Grant: The right must be clearly definable, must not impose a mandatory spending obligation on the servient owner, and must not completely deprive the servient owner of possession.

An easement of necessity is strictly limited by property law courts. It does not arise simply because access is inconvenient, steep, narrow, or commercially expensive.

It arises only when land is completely landlocked without any legal route to a public highway, and where the landlocked plot was historically divided from a common parcel. If a property has access by water (a navigable river) or pedestrian access by another route, English courts have historically refused to imply an easement of vehicular necessity (*MRA Engineering Ltd v Trimster Co Ltd [1987]*).

Where no statutory right exists, securing an express easement requires a negotiated Deed of Grant. Costs typically include:

• Consideration (Purchase Price): Valued based on diminution of servient land value or development uplift (often 10% to 33% of the unlocked development value).

• Legal & Valuation Fees: £2,000 to £5,000 + VAT covering surveyor reports and conveyancing drafting for both parties.

• Land Registry Registration Fee: £40 to £100 for entering the benefit and burden on respective titles using Form AP1.