Easements

  • Created by: jesskeayy
  • Created on: 05-05-19 10:45
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  • Easements
    • Legal right over someone else's property; positive or negative in character
      • Positive: right that allows its holder to do something on someone else's land
      • Negative: right preventing someone else from doing something on their own land
    • An interest in land. Easements will pass on with the land when sold- s.62 Law of Property Act 1925. 'servitude'
    • re Ellenborough Park: promised to be kept as 'an ornamental pleasure garden', by means of a convenant when the land was sold
      • 4 requirements for an easement: 1. must be dominant and servient tenement
        • 2. must accommodate the dominant tenement: enjoyment of land
        • 3. both owners must be different persons
        • 4. right must be capable of forming subject matter of a grant
    • Dominant and servient
      • Dominant: tenement which benefits from the easement
      • Servient: tenement which accommodates dominant tenement: subject to the easement
      • Ackroyd v Smith: it's not for the power of the vendor to create rights not connected with use/ enjoyment of the land.
        • The owner of the land cannot render it subject to  a new species of burden, s as to bind it in the hands of an asignee
      • Dominant tenement requirement reduces ability for people to have rights over land which aren't theirs. Makes land more marketable
    • Annexed to land when created: if B grants A an easement in the form of a right of way, and A sells their land, the easement will pass on to the new owner, as it's attached to the land
    • Accommodation: (requirement 2)
      • must be for the benefit of the land, rather than benefit a person
      • Hill v Tupper: C held a piece of land on lease. A owned an inn on the land abutted with and allowed people to use the canal land.
        • C 's lease ranted him the sole/ exclusive right or liberty to put boats on the canal
    • Separate people (requirement 3)
      • If 'A' owns the freehold in two plots of land, they don't need an easement to cross one to get to the other, as they both belong to him
    • Subject matter (requirement 4)
      • 1. must be a capable grantor i.e. own an estate in land to grant an easement on. Must be legally competent
      • 2. Mus be a capable grantee: fee simple/ leaseholder owner of dominant tenement. Can't grant what you don't have
      • 3. Right must be definite: cant be loosely defined, i.e. 'right to a good view' will not fulfil the requirement
      • 4. Right must follow the general nature of rights traditionally granted
        • Hunter v Canary Wharf- building interfered with C's TV reception. No right to an easement, as this would prevent the owner from building on their land
      • 5. Right cannot impose positive burden on servient owner. Can't usually require the servient owner to do something
      • 6. Right mustn't deprive servient owner of all beneficial proprietorship. Moncrieff v Jamieson
      • Copeland v Greenhalf- 6 car spaces for 9 hours a day couldn't be an easement. Servient owner could not retain beneficial proprietorship
      • Moncrief v Jamieson: M lived in on area and J another. M's land had an easement onto J's. Agreement made to park his car on J's land
        • If an easement leaves servient owner with some use of land e.g. ability to build, this will constitute as reasonable use

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