Easement in private property
- Created by: jesskeayy
- Created on: 05-05-19 13:44
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- Easements- private property
- Prescription reform: 1966 Law Reform Committee narrowly recommended abolition of prescriptive acquisition of easements
- 1. little/ no moral justification for prescriptive acquisition- involves either an intention to get something for nothing, or where no intention is purely accidental
- 2. act of neighbourliness can be transformed into full-blown right to access land
- 3. Easements can be asked for
- 4. Rights/ liabilities usually defined in writing; same for easements
- 5. If made to be done in writing, it would clear uncertainties about extent/ nature of easements
- 6. prevents land register from reflecting who has what rights
- In community interest to have an accurate register
- 2011 Law Commission:
- Prescription regulates long use; brings legal position in line with practical reality
- Untitled
- Ensures continuation of facilities essential to use and marketability of land
- Makes good omissions in conveyancing
- No documentation makes it hard to know scope of easement
- Recommendations: 1. easement will arise by prescription completion of 20 years' continuous qualifying use;
- 2. qualifying use used without force, without stealth or permission; and
- 3. qualifying use shall not be used unless use can be rendered lawful by dispention of servient owner
- 2. qualifying use used without force, without stealth or permission; and
- Characteristics: to be an easement, a right will not deprive servient owner of beneficial proprietorship
- Problematic because: 1. 'exclusive possession' problem 2. 'ouster principle' problem
- LC 2011- recommended abolishing ouster principle
- Problematic because: 1. 'exclusive possession' problem 2. 'ouster principle' problem
- Prescription regulates long use; brings legal position in line with practical reality
- Stewardship: misleading to say 'privately owned land is really common land'
- Responsibility to use land carefully with regard to others' interest in land
- Holding land is incompatible with unrestrained self-seeking interest
- Contribute to make sure area of land provides nutritious food, raw materials, food etc. Secure human well being
- limited by ecological concerns
- Prescription reform: 1966 Law Reform Committee narrowly recommended abolition of prescriptive acquisition of easements
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