Topic 5: Easements EXAM Flashcards
What is an Easement?
A right to use land for the benefit of the other
What are the elements of an Easement?
- Must be dominant and servient tenement 2. Tenements must be owned and occupied by different people 3. Right must benefit dominant 4. Right must be capable of forming the subject of a grant
Is an Easement a personal right/benefit?
NO; easements are intended to solely benefit the dominant land, not any individual
Can the two tenements be considerably separated from each other?
NO; there must be physical proximity between the two pieces of land
Can an easement be purely for amusement?
NO; a right to easement must be one of UTILITY and BENEFIT, not merely AMUSEMENT and RECREATION
Does an Easement enable the dominant owner to have unlimited use of the land?
NO; it does not enable them to unlimited use, the ‘reasonable user’ test figures this out
Do easements impose positive obligations on the servient owner?
NO; see Moncrieff v Jamieson
What are the three ways of creating an Easement?
Expressed, Implied, and Prescription (Presumed)
When may an implied easement be created?
Courts may imply an easement by necessity (e.g. landlocked land that needs escape)
What is a ‘quasi easement’?
Where an owner creates an easement over their own land to be applied once they sell it, the buyer will be bound to it
What does ‘nec vi, nec clam, nec precario’ mean for prescription/presumed grants?
It means ‘without force, without stealth, without permission’
When is a prescription/presumed grant created?
‘As of right’ + ‘Long user’ = Prescription grant (I.e. if you use a land like you have an easement over it for a long time, there will be a presumed grant) (‘Long user’ = 20 years or more)
What are the three main ways of ending an Easement?
Release by payment, abandonment (about 20 years), and Unity of Ownership (Owning both pieces of land)
