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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.
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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
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.
Re characteristic 4: full enjoyment not to extensive