Unit 1.7 Paper 1
Rights in Another’s Land for the RES Exam
Last reviewed 11 October 2026
Unit 1.7 is about rights one person has over land belonging to someone else. The three that matter for the exam are easements, restrictive covenants and licences, and the whole unit turns on a single distinction: which of these is an interest in land that binds a later owner, and which is only a personal right against the person who granted it. Get that right and most of the questions answer themselves.
Easements: dominant and servient tenements
An easement is a right attached to one piece of land to do something on, or restrain something on, another. The land that enjoys the benefit is the dominant tenement; the land that carries the burden is the servient tenement. Common examples are a right of way, a right of support and a right to run services.
Three requirements are tested. There must be a dominant and a servient tenement; they must be owned, and occupied, by different persons, which is why nobody can have an easement over their own land; and the right must accommodate the dominant tenement, benefiting the land rather than its owner personally. That last requirement is why an “easement in gross” is not recognised, and why a right given to a trader personally is not an easement.
Because the benefit attaches to the land rather than to a person, it passes to whoever owns that land next; section 101 of the Land Titles Act provides that easements pass on a transfer without express mention. So selling the dominant land does not end the easement, and the buyer of the servient land takes subject to a registered easement whether or not the seller mentioned it.
How an easement is created over registered land
Section 97 of the Land Titles Act is headed “Registration necessary for creation of easements”, and that is the central rule. The registered proprietor creates the easement by executing a grant in the approved form, or by appropriate words in a transfer or lease where it arises out of that transaction. The instrument must state the nature and extent of the easement, identify the dominant tenement and set out any conditions or restrictions (section 97(3)). The easement is then registered by the entry of a memorial on the folio for the servient tenement (section 97(5)), and notified on the dominant tenement’s folio unless its proprietor dispenses with that (section 97(6)).
A few routes do not depend on an express grant. Sections 98 and 99 imply easements within a development or an approved subdivision — for the passage of water, electricity, drainage, gas and sewerage, and for rights of way and other rights shown in a subdivision plan. Section 97A gives the court power to create an easement. Section 10 of the State Lands Act implies an easement of subjacent support for each parcel of land. The Land Titles (Strata) Act implies easements between each lot and the common property: subjacent and lateral support (section 16), shelter (section 17), and the provision of water, sewerage, drainage, gas, electricity and other services (section 18).
Section 95 completes the picture from the other direction: licences are not to be registered. A permission to use land is not turned into an easement by registering anything, because there is nothing registrable.
Prescription and why it no longer creates new easements
At common law an easement could be acquired by prescription — long, open and uninterrupted use as of right, conventionally for about 20 years. Candidates arrive with that rule and misapply it.
Section 97(1) of the Land Titles Act shuts the door. It provides that an easement is not acquired over registered land by long-continued user adverse to a proprietor, nor by prescription, nor by any presumption of a lost grant, nor by any implication of law except as may be provided in the Act — the only outside exception named being section 10 of the State Lands Act. The consequence is that no new prescriptive easement can arise over registered land; only prescriptive easements already subsisting when the land became registered land survive.
So where a neighbour has driven across the next-door plot for years, that use is at best a licence that can be withdrawn, and the way to secure it is an express grant by registered instrument. Even if prescription were available, the usual distractors would fail: use with the owner’s permission is not use “as of right”, ten or fourteen years falls short of twenty, and paying a monthly sum makes the arrangement a contractual licence. Note too that section 99 concerns implied easements shown in a subdivision plan, not prescription.
How an easement comes to an end
An easement can be extinguished in four main ways. The first is unity of ownership and possession: once the same person owns and occupies both tenements the easement goes, because an owner cannot have an easement over their own land, and section 100 deals with extinguishment by union of tenements. It does not revive automatically if the lots are later sold off separately; a new easement would have to be granted expressly — worth remembering before a listing advertises a right of way that no longer exists.
The second is express release by the dominant owner, which where the easement is registered should itself be registered so the register no longer shows it; an oral promise does not remove a registered easement, and section 106 provides for cancellation.
The third is abandonment, which requires clear evidence of an intention to give up the right permanently. Mere non-use is not enough, and a temporary absence certainly is not. There is no rule that SLA cancels an easement after twenty years of disuse. The fourth is a court order, under sections 105 and 105A, which also cover variation.
What cannot end an easement is anything done unilaterally by the servient owner: not a resolution, not a by-law, not a caveat, and not selling the land, because a registered easement binds the new owner. Where works on the servient land threaten a registered right such as an easement of support, the dominant owner can seek an injunction and damages.
Restrictive covenants and profits
A covenant is a promise about the use of land, usually given on a sale, and the question is whether it binds later owners of the burdened land. Following the equitable principle in Tulk v Moxhay, the burden of a covenant that is negative in substance — a promise not to do something — can run with the land and bind successors in title, provided it was taken to benefit neighbouring land and the successor has notice of it, which in practice means it appears on the registered title. A covenant not to use premises except as a single private dwelling is the classic example.
The burden of a positive covenant, such as a promise to repair or to contribute, generally does not run with freehold land, at common law or in equity. That asymmetry is tested often: the wrong answer usually makes a repairing obligation bind a buyer.
Restrictive covenants can be discharged by agreement, by unity of ownership, or by court order where the restriction has become obsolete. They operate independently of planning controls: a covenant does not give planning permission, and planning permission does not override a private covenant.
A profit à prendre is the right to take something from another’s land, such as crops, timber or soil. It too is an interest in land, and a right to enter land to carry away something already bought leads to the next category.
Licences: permission, not property
A licence is permission to be on land. It makes conduct that would otherwise be trespass lawful, and nothing more. It is not an interest in land, so it does not bind a purchaser and cannot be protected by a caveat. If the licensor revokes it in breach of the agreement, the remedy is contractual — typically damages — not a claim to stay.
The syllabus distinguishes three kinds. A bare licence is a gratuitous permission, revocable at any time. A contractual licence is granted for consideration and governed by its terms, including any notice provision: where either party may end it on one month’s written notice, notice served on 15 September ends the right on 15 October, and a stated two-year term does not override an express break clause. A licence coupled with an interest is a permission to enter that is necessary to enjoy a separate interest, such as removing crops or timber already bought, and cannot be revoked while that interest lasts.
The examiner’s favourite device is the lease-or-licence question, and the test is exclusive possession of defined premises for a term. Where the owner keeps control — retaining unrestricted access, providing cleaning and meals, sharing the space, or reserving the right to move the occupier to another bay or stall — there is no exclusive possession and the occupier is a licensee, however regularly money changes hands. Paying rent, signing a document and staying a long time do not by themselves create a tenancy.
Terms to know
- Easement
- A right attached to one parcel of land to use, or restrict the use of, another parcel belonging to someone else.
- Dominant tenement
- The land that enjoys the benefit of an easement.
- Servient tenement
- The land that carries the burden of an easement.
- Prescription
- Acquisition of an easement by long, open and uninterrupted use as of right; excluded for new easements over registered land by section 97(1) of the Land Titles Act.
- Restrictive covenant
- A promise, negative in substance, limiting the use of land, whose burden can run in equity so as to bind later owners with notice.
- Profit à prendre
- A right to enter another’s land and take something from it, such as crops, timber or soil.
- Licence
- Permission to be on land that makes what would otherwise be trespass lawful; a personal right and not an interest in land.
- Licence coupled with an interest
- A permission to enter land that is necessary to enjoy a separate interest, such as removing goods already bought, and that cannot be revoked while that interest lasts.
Frequently asked questions
Can I still get an easement by using my neighbour’s driveway for 20 years?
Not over registered land. Section 97(1) of the Land Titles Act excludes acquisition of an easement by long-continued user adverse to a proprietor, by prescription or by presumed lost grant, so no new prescriptive easement can arise. Only prescriptive easements already subsisting when the land became registered land survive; otherwise the access has to be granted expressly and registered.
What is the difference between an easement and a licence?
An easement is an interest in land: it attaches to a dominant tenement, burdens a servient tenement, and binds later owners once registered. A licence is only a personal permission to be on land; it creates no interest, cannot be protected by a caveat, and does not bind a purchaser. If a licence is revoked in breach of contract, the remedy is damages against the licensor.
Does a restrictive covenant bind the next owner?
The burden of a covenant that is negative in substance can run with the land in equity under the principle in Tulk v Moxhay, where the covenant was taken to benefit neighbouring land and the successor has notice — in practice because it appears on the registered title. The burden of a positive covenant, such as an obligation to repair, generally does not run with freehold land.
How can a registered easement be removed from a title?
By express release from the dominant owner, registered so the register is updated; by unity of ownership and possession of both tenements; by abandonment, which needs clear evidence of an intention to give up the right permanently; or by court order. The servient owner cannot cancel it unilaterally, and non-use by itself does not end it.
If an occupier pays monthly and has a written agreement, is that a lease?
Not necessarily. The test is whether exclusive possession of defined premises has been granted for a term. Where the owner retains control — sharing the space, keeping unrestricted access, or reserving the right to relocate the occupier — the arrangement is a licence, however regular the payments and whatever the document is called.
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