The Nature And Effect Of An Easement

Question 1

Identify the characteristics of an easement

Answer 1

4 characteristics laid down in Re Ellenborough Park [1956]:-

1. There must a dominant and servient land.
2. The dominant and servient owners must be different
3. The easement must ‘accommodate’ the dominant tenement.
4. The easement must be capable of forming the subject matter of a grant.

Question 2

Explain how easements are created

Answer 2

Can be granted in a number of ways:-

1. Express grant - the owner of the servient land expressly agree to allow the owner of the dominant land an easement over his land.
2. Express reservation - the owner of land sells part of the land and reserves an easement over his land.
3. Implied grant by necessity - if the only way the purchaser can get to the land he has bought from the owner is over the owner’s retained land. Nickerson v Barraclough [1982]
4. Implied grant by common intention. Liverpool City Council v Irwin [1977]
5. Implied grant hy the ruling of Wheeldon v Burrows [1879]
6. Implied reservation - only permitted in cases of necessity or common intention.
7. Prescription - long usage. Prescription Act 1832

Question 3

Explain how easements are discharged

Answer 3

Can be extinguished as follows:-

1. When the dominant and servient tenements come into the same hands
2. By release when the dominant owner gives up his rights.
3. By statute
4. By abandonment, which can be deduced from a prolonged non use of the easement. This is a form of implied release.