Examples of easements

Standard

creation of easements

an easement may exists    may exist both    at law and in equity    . the distinction    between elgal and equitable   easement   is important   since different   methods of creation  appy    to each actegory

the distinction   os also crucial   in determining   whether an easement    runs with    the lad  – ie      passes        on transfer       of either the dominant    tenement    or serivent tenement – to be enforceable     by or against    the new owner

____________________________

LEGAL EASEMENTS

TO exist at law   it must  be held for an interest equivalent     to an estate in fee simple   absolute   in possession   or a term of years absolute  and it must be created   by

______________ statute

_________________ deed/ registered  disposition

__________________  or prescription

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EQUITABLE EASEMENTS

easements may be held     for a period other than either a fee simple absolute   in possession or a term of years MUST bne equitable

an easement will also be equitable if it has not been created   by one of the hrrwe mthodsfor creating     legal easement

thus an easement  for   life or an easement that had ben created informally     cannot exist at law   though it may     take effect in equity

equitable easements      may be created     in a written contract   which equity regards    as specially enforceable MP MP ACT 1989

walsh v lonsdale         1882

or by proprietary estoppel

an equitable     easements   is regustrable       under the LCA    if the land is unregistered    and is scpable of entry on the land register

if the land    is registered

easement normally      come into existence     either by means of a       reservation    where eg the vendor   of the land reserves a right of way over the land sold

or by means of a gram

t     where the vendor of land    grants    the purchaser    a right of way over the retained land

both reservation   and grant mAY be either express deliberate of implied

_______________________

EXPRESS CREATION.

an expressly      created     easement      will  be legal       or  equitable    depending    upon the       character    of the document    which creates   it

__________________________

EXPRESS RESERVATION

an express   reservation  is where the oner   of the dominant    tenement    deliberately  and expressly jeep the right for himslef  when he sells or leases prt of his land to another

a reservation  operate by way of re grant

i e the purchasr is deemed tio have grnated  the eaasmenet    to the vendor

this means  taht if there is any ambiguity   in the     definition     of the easement    which cannot be dispelled   by consideration of the surrounding      circumstances       the grant     will be construed   against the grantor   ie.   in this case     puexhSER

ST EDmundsbury    and Ipswich  diocesan    board of  finance     v calakre   no 2

————————–

EXPRESS GRANT

express grant is fairly   self explanatory – the owner   of the servient tenement    deliberately   grant the right over his land to the owner of the dominant tenement

______________________

IMPLIED CREATION.

implied creation   will result    in a legal   or equitable   easement   de=ending upon the charatcre   of the document   into which it is implied

_____________________

IMPLIED   RESERVATION

only trwo  instances  will easement be implied    in favour of a grantor

1. EASEMENTS OF NECESSARY

these occur  where the land retained   would be uselss   without the existence     of an easement   in tis favour. the typical case is where a transaction      has effectivyl   deprived      land of sutable means of access.

although it used to be thought that the principle was base dn piblic policy   it is clear since   nickerson v barracliygh   that ways of necessity      are implied from the common  intention of the parties

an eassment of necessity   is strictly   limited to the kind    of second category   since what is necessayr   to enjoy the land will usually be presiumed to be the common inteion of the aprties trasnferring  the land

it is a common mistake in exioation   answer for student to assue the necessity   includes    sotiatiosn were it is morel more difficult for the claimant to access a main road if he does not go over D ;s land

in   adealon international proprietary ltd v merton  london BC  2007      it was held that where there had been no express reservation iof a right of way and  there remained     a realistic   possibility  of alternative     access over aldn belonging   to third parties no such right of way could exist

the claimant owned land bordering   the A 24      rad and the defendant M –   owned neighbouring land         which had another road/

high path      at its northernblundayr a could not lawfully access witht he A 24       or high path     without [p;anning permission which had been refused

until 1989           the two plots   had been in common onwersghip

applying manjang    v drammeh and nickerson v barracligh    no easement   of necessity   could exist on the facts

______________________________

INTENDED EASEMENTS

these are easements    necessary   to give effect to the common intetnion of the parties  at the time of the grant. the scope of this category    which would see to include   easement of necessity – has been strcitkyl   limited by the courts  – see pwllbach   colliery   co ltd v woodman

re webb;s lease

implied creation of easements  by common intention is not lightly presumed   particularly where implied  reservation  is argued’ chaffe v kinglsye   1999

as a general principle if an alleged easement is vital to the parties common intention then they should have expressly   created in tin the conveyance  between them

in stafford v     lee 1993     nourse LJ    stated that an easement by common intention can exist   if there waa  common intention   between the purchaser    and vendor   of the land s to some       particular use of the lad and the easemy   is necessary    in order to give effect   to that intention

on the facts    the purchaser       wanted to buoly  a house on the land   and the vendor solid it to him for that purpose    since the only practical access for th sonctrcutiuon process    was voer the vendor’s land

it was held   that an easement for the purpose  of contrctuon had been created

 

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About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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