An easement must be negative from the point of view of the servient owner- that is, it must not involve the servient owner in any expenditure A right cannot be an easement if it involves expenditure by the alleged servient owner. By the same token, a servient owner is under no obligation to carry out any maintenance or construction work that may be needed for the enjoyment of any easement (Rance v Elvin).
To this rule, there are at least two recognized exceptions:
Where there is an easement of fencing, the servient owner is bound to maintain the fence for the benefit of the dominant tenement, notwithstanding that the maintenance will involve expenditure of money (Wood v Crow).
Where the parties have expressly or impliedly agreed that the servient owner is to be responsible for maintenance- for example, a local authority, which had let apartments in apartments in a high-rise building to tenants, was held liable, as under an implied contract, to maintain easements of access over the common parts of the building (Liverpool CC v Irwin).
Legal and Equitable Easements Easements have been recognized at common law from medieval times, and they usually take effect as legal interests binding all successors-in-title to the servient tenement. However, in order to be valid at law, an easement must be created by deed, or writing. Legal easements may also be acquired by prescription, in which case long use in effect takes the place of a deed.
An easement that is granted without the proper formalities may take effect as an equitable easement under the Walsh v Lonsdale principle (for instance, where a right of way is granted by a written agreement not under seal7).
ACQUISITION OF EASEMENTS Express grant (where the dominant tenement is sold)
No special form of words is required for the express grant of an easement, provided that the extent of the easement and the description of the dominant and servient tenement are reasonably clear. Usually, the dominant tenement will be described in the deed, but, if it is not, the court will consider all the surrounding circumstances in asserting whether there is a dominant tenement (Johnstone v Holdway).
