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
      • 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
    • 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

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