Incorporeal Hereditaments

Question 1

Incorporeal Hereditaments (IH)

Answer 1

Today, IH can broadly be defined as ‘interests in land which do not include the right of possession’ (Lyall).
They are sometimes described as ‘rights over the land of another person’.
‘Hereditaments’ means that the interest in land can be inherited under the rules of succession.
‘Incorporeal’ means that the interest is in respect of thing that is not physical thing, i.e. it is something that is not tangible.

Question 2

Types of IH

Answer 2

Easements: right to do something over the land of another for the benefit of one’s own land (such as a right of way)- they exist appurtenant to land -so you need to own land for an easement to exist

Profits à prendre: the right to take something from the land of another (e.g. shooting rights or fishing rights)

Rent-charges - These are rents on freehold land (can no longer be created in law or equity, s 41(1) LCLRA 2009)- no longer relevant really

Miscellaneous rights (natural rights, public rights). Relevant section of LCLRA 2009 is part 8, Chapter 1 (easements and profits á prendre)

Question 3

Easements

Answer 3

Easements are appurtenant rights, which implies they exist between two pieces of land and must be attached to contiguous property.

The person who holds the easement is doing it for the benefit of a piece of property that they own, not for personal gain.

They can’t exist unless they’re connected to land (‘in gross’).

The Re Ellenborough Park set of easement definitions, which are still in use today- Positive and negative requirements

Question 4

Positive requirements for easements - There must be a dominant and a servient tenement

Answer 4

The easement must provide a benefit to some land (dominant tenement) while imposing a cost on other land (the servient tenement)

‘“Dominant land” denotes land that benefits from an easement or profit à prendre to which other land is subject…’ and the term “dominant owner” must be construed to include that owner’s predecessors and successors in title;’

See also s. 33’s concept of servient land.

The dominant tenement as well as the servient tenement must be clearly distinguished.

While there must be some physical proximity between the two tenements, they do not have to be next to each other.

Question 5

Positive requirements for easements - The easement must accomodate the dominant tenement

Answer 5

The easement must enhance the use value of the land (dominant tenement), i.e. make it a ‘better’ property.

The rationale behind this is to prohibit the creation of additional types of easements.

An easement will accommodate the dominant tenement so long as it benefits the ordinary use and enjoyment of the dominant tenement. (Re Ellenborough Park (1956)

Question 6

Positive requirements for easements - The owner and / or possessor of both tenements must be different

Answer 6

• This rule developed in England at common law. It was modified in Ireland due to the prevalence of agricultural tenancies in the past.
• The rule is logical, because why would one require an easement over one’s own land?!…. However, it is possible for a landowner to have an easement over land that she owns.
• For example, if a landowner, A, leases a portion of their land to another person, B, B has exclusive use of the leased land. However, A can reserve an easement over leased land, for example, if they require the easement to access the area that they have retained. Estb in Ireland since Hanna v Pollock (1900). This possibility is now dealt with under s36 LCLRA 2009

Question 7

Positive requirements for easements - The right must be capable of being the subject of a grant

Answer 7

In order to be recognised, the right must be capable of being described in a deed of grant.

This aspect applies irrespective of whether the easement was created by a grant (easements can be created through usage for a period of time, a bit like acquiring an interest in land through adverse possession).

This requirement prevents the right from being too vague or wide

This requirement prevents the right from being too vague or wide.

This has 2 subcomponents:
Scope of right must be precise and clear:
- Courts will not impose vague restrictions on the right to possession of the owner of the servient tenement
- e.g. general right to view - not an easement as held in Dalton v Angus (1881)
- Recognised right to view - restrict building - questionable from pub policy view - and restrict development potential of servient tenement

Right must be similar in nature to those historically recognised as easements. Lot of long estb easements - right if way, right of light - right to support an adjoining building