Easements Flashcards
What is an easement?
an easement is a ‘use’ right - the right to make limited use of another person’s land
Describe the relationship between dominant and servient tenements
An easement is a relationship between 2 pieces of land: the servient tenement is burdened for the benefit of the dominant tenement
What is the relationship between an easement and the land title?
The easement becomes part of the land title and passes to subsequent owners - it ‘runs with the land’
Describe how mutual easements (e.g., in the case of a shared driveway) work?
the neighbours owne simultaneously the dominant and the servient tenement
True or False: an easement is a natural right?
False, an easement does not naturally come with the fee simple title, it must be created as part of the relationship between the two owners
What are the four requirements of an easement?
from Ellenborough Park
1) there must be a dominant and a servient tenement
2) an easement must ‘accommodate’ and serve the dominant tenement (must also be reasonably necessary for the enjoyment of the dominant tenement)
3) the dominant and servient owners must be different people
4) a right over land cannot amount to an easement unless it is capable for forming the subject matter of a grant
a) cannot be too broad or vague
b) cannot provide the same rights as possessory title
AND easements cannot be negative (unless already recognized)
True or False: an easement can be declared by somone other than a landowner?
False, there must be a dominant and a servient tenement. A non-owner has not rights to either tenement
True or False: a right that grants rights “to use land for whatever you want whenever you want” is an easement?
False, this is consistent with the proprietorship/possession of the alleged servient owners - essentially it is granting full title rights
True or False: an easement needs to make the dominant land more valuable?
False, an easement simply has to increase the enjoyment of the dominant land - make it better ‘as land’
True or False: Most easements are positive rights?
True, generally easements are a right to do something with someone else’s land.
Negative easements do exists in already recognized categories
What are some examples of negative easements?
Right to light
Right to receive air by a defined channel
Right to lateral support for buildings (Dalton v Angus)
Right to continue to receive the flow of water from an artificial stream
New categories will not be recognized by common law
no right to a view (Bland v Mosely)
What is the principle effect of a negative easement?
It prevents the owner of the servient tenement from doing something with their land
True or False: all easements must be created through express grant?
False, the law allows for implied grants of easements and of prescriptive easements
What is the difference between an express grant and an express reservation of easement?
Express grant: one party gives another the right to use their land in some way
Express reservation: you can sell your land, but keep the right to the easement for yourself
If a seller sells a greenhouse to a buyer that at the time of sale has unobstructed access to sunlight on all sides, can the seller then sell an adjacent piece of land to a developer to build a tower that blocks all the light to the greenhouse?
No, a grantor shall not derogate from their implied grant
if the buyer looks at the facts on the ground and sees the land they are buying will receive light across the neighbouring land they assume that the grant includes the right to light - the seller would thereby be derogating in some way if they were to deny the right to light was included
