Easement + Profits Flashcards
An easement is a right
e.g. right of way, light, support or water over someone else’s land which exists to benefit another piece of land i.e. the dominant tenement and the land subject to the easement is the servient tenement. The easement can be positive (do something) or negative (don’t do something) i.e. as regards obligations to fulfil the easement.
A profit á prendre (á prendre just means to take) on the other hand can exist like an easement, but can also be held in gross i.e. independently of any land owned by the holder of the profit (primary distinction from easements).
A profit is therefore a right to
go on another person’s land and take natural material from it e.g. fish, hunt or cut timber.
Profits are divided into:
(i) those which are appurtenant (belonging to) to a dominant tenement i.e. think anything which comes from the ground like mineral or turbary rights (right to cut turf or peat);
(ii) those which are appendant to land (attached by operation of law): don’t worry about these as they rarely arise in practice; and
(iii) those held in gross e.g. fishing rights.
Test for easements/profits
The test to establish an easement was outlined in Re Ellenborough Park:
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- There must be a dominant and servient tenement (remember this does not apply to profits, as they can exist in gross);
- The easement must accommodate the dominant tenement (it must benefit the land itself and not merely the owner in their own capacity);
- The ownership/possession of both tenements must be in different people; and
- The right must be certain enough to be contained in a deed (the right must be precise and capable of definition, and there must be a grantor and grantee).
Different types of easements
- Rights of way
- Public rights of way:
- Right to light:
- Right to support:
- Repair and ancillary rights
Different types of easements
• Rights of way:
a right to pass along a specific route through property belonging to another. This usually relates to a right to walk or drive along a road, route or pathway or where a landlord grants a right of way over common areas to leased premises. A right of way may be a customary right i.e. one established in a particular district and used since time immemorial, are specific and must not be unreasonable i.e. could be a right to wander over forested lands or river banks.
• Public rights of way:
Geraghty v Quinn: special conditions in a contract for sale were interpreted by ct as referring to connecting the retained lands to the public roads although it was not expressly stated as to do otherwise would not be sensible.
O’Gara v Murphy: right of way can be extinguished by non-user and the intention to abandon the easement. Public roads in Ireland can be classified as national, regional, or local. However, there are also roads which have a public right of way over them but may be classified as “private” because the local authority has not formally taken the road in charge. The Roads Act 1993 obliges local authorities to protect the public’s right to access public rights of way.
• Right to light:
Lattimer v Official Cooperative Society.
Gaw v CIE.
This right can only be acquired in respect of a building, specifically a window, normally in proportion to the amount of light reasonably required. Ordinary use is an objective standard and will depend on the purpose the building is used for.
You can also not claim for a diminution in light.
A greenhouse obviously will need more light:
Allen v Greenwood.
Replacing old windows with new windows:
Scott v Goulding.
• Right to support:
example of a negative easement which requires an action by the servient landowner. It prevents him from operating his lands freely.
Todd v Cinelli: d demolished a semi attached house which caused damage to p’s house and deprived the right to support, ct granted damages but also the loss in value.
• Repair and ancillary rights:
grant of a right carries such ancillary rights as are necessary to maintain the due and proper exercise of that right. The servient owner is generally not obliged to repair the lands, the subject of the easement. Any works or repairs need to be carried out by dominant owner.
Acquiring an easement or profit
3 ways
- By express grant
- By implied grant
- By prescription
- By express grant
the first (and simplest) way to acquire an easement is by someone actually writing into a deed that you are entitled to an easement or profit which fulfils the requirements above.
- By implied grant
i.e. the easement is granted because of necessity i.e. implied right. This principle was formally known as the rule in Wheeldon v Burrows, and which is now abolished by Section 40 LCLRA09.
Section 39 LCLRA09 introduced a requirement to formally register such easements before 1 December 2012 rather than simply detailing them by way of a statutory declaration (which had become the norm when selling property). The relevant user period is a minimum of 12 years except in circumstances where the servient owner is a state authority for a minimum of 30 years, or, where the servient land is foreshore, a minimum period of 60 years. 3.
