Nature of an easement Flashcards
What is the definition of an easement?
Proprietary right to use land which belongs to somebody else
Person who has the benefit = grantee
the land which is benefitted by the easement = dominant tenement
person who grants the easement = grantor
land which is burdened by the easement = servient tenement
What are the requirements for a legal easement?
It has to fulfil requirement of duration:
For freehold land an easement has to be absolute in possession for a term of years absolute - indefinately
For a leasehold it must be granted for the term of the lease
When does an equitable easement arise?
if it is not granted for the equivalent of a freehold or leasehold estate it can only be equitable - has to be granted forever of for a certain period of time
What is a positive easement?
Allow the holder to use the servient land of another in a particular way
What are negative easements?
They do not involve entering neighbouring land but they prevent the servient land owner from doing something on their land by giving the dominant land owner a right to receive something
What are the only negative easements recognised at law?
A right to light
A right to air
A right of support eg from the dividing wall between semi detached houses
What are other types of rights that are not easements?
Quazi easements
Public rights
Licenses
Profits a prendre
Restrictive covenants
What is a grant?
Exists where C, a landowner, sells or leases part of his land to D and gives D an easement over the land which C retained
What is a reservation?
Exists where C sells or leases part of his land to D and retains a right over the land sold or leased to D
What are the facts of Cordell v Second Clanfield Properties in relation to reservations?
Cordell sold development land and reserved a right of way over the estate road
At the time there was an access way 12 feet wide serving Cordell’s retained land. Sometime later, Cordell sought a declaration that he was entitled to a right of way 28 feet wide at all times and for all purposes.
If Cordell had needed such an extensive right of way, he should have specifically stated it in the transfer deed, making sure that the reservation covered any future needs he may have. The claim failed.
SEE SLIDES FOR EXAMPLE DIAGRAM OF RESERVATION
SEE SLIDES FOR EXAMPLE DIAGRAM OF RESERVATION
How are easements created?
Expressly - set in the transfer deed or lease or created independently of the transfer in a separate deed
Impliedly - and then will be written into the document from which it was originally omitted
Prescription
How are easements created by prescription?
A long use
Arises where it has been exercised over land for at least 20 years yet no express grant or reservation was traced
Easements acquired by prescription are legal easements
there can be no period of interruption for the 20 years which is one year or more
What is the effect of a prescription?
Servient landowner is deemed to tolerate the creation of the easement
What are the types of easements by prescription?
Prescription at common law
prescription under lost morden grant
the prescription act 1832
