Docsity
Log inSign up
Docsity
Prepare for your exams
Prepare for your exams

Study with the several resources on Docsity

Earn points to download
Earn points to download

Earn points by helping other students or get them with a premium plan

Guidelines and tips
Guidelines and tips
Sell on Docsity
Sell on Docsity
Log inSign up

Prepare for your exams

Study with the several resources on Docsity

Find documents

Prepare for your exams with the study notes shared by other students like you on Docsity

Search Store documents

The best documents sold by students who completed their studies

Search through all study resources
Docsity AINEW

Summarize your documents, ask them questions, convert them into quizzes and concept maps

Explore questions

Clear up your doubts by reading the answers to questions asked by your fellow students

Earn points to download

Earn points by helping other students or get them with a premium plan

Share documents
download point icon20 Points

For each uploaded document

Answer questions
download point icon5 Points

For each given answer (max 1 per day)

All the ways to get free points
Get points immediately

Choose a premium plan with all the points you need

Study Opportunities

Choose your next study program

Get in touch with the best universities in the world. Search through thousands of universities and official partners

Community

Ask the community

Ask the community for help and clear up your study doubts

University Rankings

Discover the best universities in your country according to Docsity users

Free resources

Our save-the-student-ebooks!

Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors

From our blog

Exams and Study
Go to the blog

Understanding Easements: Definition, Characteristics, and Requirements, Study notes of Law

University of BedfordshireLaw

An in-depth analysis of easements, including their definition, essential characteristics, and requirements. Easements are rights enjoyed by the owner of one piece of land that interfere with the use and occupation of another piece of land. They can be positive or negative and run with the land. The identification of dominant and servient tenements, the necessity for the easement to benefit the dominant tenement, and the incapability of the easement being owned and occupied by the same person.

Typology: Study notes

2021/2022

Uploaded on 09/12/2022

lilylily
lilylily 🇬🇧

4

(8)

218 documents

1 / 4

Toggle sidebar

This page cannot be seen from the preview

Don't miss anything!

bg1
TOPIC 11: EASEMENT
WHAT IS AN EASEMENT
Definition: a right enjoyed by the owner of one piece of land (called the dominant tenement), the
exercise of which interferes with the use and occupation of another piece of land (the servient
tenement). As an in rem right, they run with the land. Easements may be positive or negative in
nature.
A positive easement gives a right for something to be done – e.g. a right to walk or drive
across land.
A negative easement gives a right to prevent something being done – e.g. a right to receive
light to a defined aperture (restricts the height of buildings on the servient land).
The owner of the dominant land can bring an action in nuisance against anyone who
interferes with an easement.
ESSENTIAL CHARACTERISTICS OF EASEMENTS
(Re Ellenborough Park; Riley v Pentilla)
1. There must be a dominant and a servient tenement
▪ Must be one property that is benefits (NOT profits) from the easement (dominant
tenement) and another property that is subject to/burdened by the easement (servient
tenement)
▪ The instrument creating the easement need not expressly identify the dominant tenement
although it must be capable of being identified by the surrounding circumstances
▪ An easement can’t benefit the public at large
NOTE
According to Bradbrook: easement is a privilege without profit. It is:
not a lease: easement must NOT amount to exclusive use or possession of the servient tenement.
not a licence: easement must be created at common law by deed of grant, whether actual, implied, or
presumed. A licence can be created without these formalities. An easement requires a DT and ST – a
licence does not require a DT and so can be in gross. A licence can be used to grant general possession
of land.
not a restrictive covenant: easements and restrictive covenants overlap to a significant degree.
Differences: easements may exist in either law or equity, whereas RCs are purely equitable. Easements
may be acquired by prescription (RCs cannot be). Easements are broader in scope than RCs)
pf3
pf4

Partial preview of the text

Download Understanding Easements: Definition, Characteristics, and Requirements and more Study notes Law in PDF only on Docsity!

TOPIC 11: EASEMENT

WHAT IS AN EASEMENT

Definition: a right enjoyed by the owner of one piece of land (called the dominant tenement ), the exercise of which interferes with the use and occupation of another piece of land (the servient tenement ). As an in rem right, they run with the land. Easements may be positive or negative in nature. A positive easement gives a right for something to be done – e.g. a right to walk or drive across land. A negative easement gives a right to prevent something being done – e.g. a right to receive light to a defined aperture (restricts the height of buildings on the servient land). The owner of the dominant land can bring an action in nuisance against anyone who interferes with an easement. ESSENTIAL CHARACTERISTICS OF EASEMENTS (Re Ellenborough Park; Riley v Pentilla)

1. There must be a dominant and a servient tenement ▪ Must be one property that is benefits (NOT profits) from the easement (dominant tenement) and another property that is subject to/burdened by the easement (servient tenement) ▪ The instrument creating the easement need not expressly identify the dominant tenement although it must be capable of being identified by the surrounding circumstances ▪ An easement can’t benefit the public at large

NOTE

According to Bradbrook: easement is a privilege without profit. It is: not a lease : easement must NOT amount to exclusive use or possession of the servient tenement. not a licence : easement must be created at common law by deed of grant, whether actual, implied, or presumed. A licence can be created without these formalities. An easement requires a DT and ST – a licence does not require a DT and so can be in gross. A licence can be used to grant general possession of land. not a restrictive covenant : easements and restrictive covenants overlap to a significant degree. Differences: easements may exist in either law or equity, whereas RCs are purely equitable. Easements may be acquired by prescription (RCs cannot be). Easements are broader in scope than RCs)

▪ Cannot have an easement that is not attached to land/that is not attached to the dominant tenement (this is an easement in gross ) Exception : legislation creates certain easements in gross – no requirement that it benefit land o E.g. easements held by a service provider such as a water authority for the placement of pipes, drains or cables under or over land ▪ Australia case law makes it clear that the instrument creating an easement need not expressly identify the dominant tenement. This rule applies to both Torrens land and General Law land. ▪ The dominant tenement need not be solely corporeal real property – it can be solely incorporeal property, or both.

  1. Easement Must be For the Benefit of Dominant Tenement ▪ Easement must be reasonably necessary to facilitate the convenience and better enjoyment of the dominant tenement as land (question of fact) (c.f. connection to the owner at the time) (Re Ellenborough) o An easement is limited to the needs of the dominant tenement; the guise of an easement can’t be used to establish a business enterprise, which has no normal connection with use of the dominant tenement. o An easement is limited to the needs of the DT, and the needs must relate to the LAND itself, not a benefit to the person in occupation ▪ Determine as a question of fact by the surrounding circumstances ) (Re Ellenborough) ▪ But, an easement may accommodate a business carried out on the dominant tenement provided that the business is tied to the dominant land ( Copeland v Greenhalf ) ▪ Relevant (but not determinative) that the easement enhances value of the property – must show connection to the normal enjoyment of land (Ellenborough) ▪ The two tenements need not be neighbouring (but close enough for the servient to ‘accommodate’ the dominant tenement).
  2. The Two Tenements Cannot be Owned and Occupied by the Same Person ▪ Rationale: a person cannot acquire rights against themselves ▪ Cannot have easement over own land [but can have easement where one lot is occupied by LL and the other as tenant, just not an easement by prescription] ▪ Easement not invalid unless both tenements owned and occupied by the same person. ▪ If the dominant and servient tenements come into the same ownership the easement is extinguished.

Re characteristic 4: full enjoyment not to extensive

  • similar to the right to enjoy public gardens, no joint occupation and clear benefit (not a broad right to enjoyment) Copeland v Greenhalf (1952) (UK) Copeland owned Barebones orchard and an adjoining house. Part of Copeland’s land included a strip of land between North Street and the Orchard, which was used for access. Copeland owned the strip as well. Greenhalf owned a house and workshop on land opposite to the strip. Greenhalf used the strip to park cars awaiting collection and/or repair in relation to his business. Copeland brought action against Greenhalf to restrain him from using land in this way. Issue: Greenhalf argued that his use of the strip was pursuant to an easement (no right to restrain use). The case rested on whether Greenhalf’s rights were capable of forming the subject matter of a valid easement: were they too wide or vague, or inconsistent with Copeland’s rights? The Court held that Greenhalf did not have an easement – the rights benefited Greenhalf’s business rather than the land (eg personal benefit not benefit to DT). The rights claimed were too vague, going wholly outside the normal idea of an easement which effectively amounted to joint use of the land (ie a claim for possession of the servient tenement to the exclusion of the owner. Riley v Penttila (1974) (Vic) A number of lots backed onto a reserve. Each transfer granted the purchaser and successors the ‘liberty to enjoy the reserve for the purpose of recreation or a garden or a park’. Ds and their predecessors had fenced off a portion of reserve for 40 years, used originally as tennis court and later garden. Other owners sought injunction to prevent interference – Ds claimed AP and that the characteristics 2 and 4 required of easements weren’t satisfied. AP failed because no clear intention to exclude others (made more difficult with grant of easement
  • just using as a garden). Easement valid. 2: clear physical connection between rights granted and enjoyment of lots (no fences) – useful to occupation – right granted to successors in title so not personal; 4: right more explicit than in Ellenborough ; enjoyment of a defined area for recreation not given to the public was certain.