2736400
Descrição
Mapa Mental por Hadiha Waheed, atualizado more than 1 year ago
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Criado por Hadiha Waheed
mais de 9 anos atrás
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EASEMENTS
- Definition
- Private property right which passes with the land
•Positive or negative right of user over land of
another:
- e.g: right of way, right to land, parking easements
- e.g: right of way, right to land, parking easements
- Private property right which passes with the land
•Positive or negative right of user over land of
another:
- Methods of acquistion:
- By express grant or reservation:
- Deed of grant that states terms of easements or take
form of a conveyance in the clause
- Deed of grant that states terms of easements or take
form of a conveyance in the clause
- Prescription
- Modes of prescription:
- Common law
- Claimant can show right has
been enjoyed for 20 years. could have been since 1189
- Claimant can show right has
been enjoyed for 20 years. could have been since 1189
- Lost modern grant
- Court willing to presume valid
grant of right was given in the past
- Court willing to presume valid
grant of right was given in the past
- Prescription Act 1832
- Easements acquired upon 20-40 years uninteruppted use as of right.
Acquisition will not be defeated by showing use began after 1189
- Easements acquired upon 20-40 years uninteruppted use as of right.
Acquisition will not be defeated by showing use began after 1189
- Common law
- Satisfy 3 conditions to
establish easement has
been acquired:
- 1) User must be 'as of right:'must be nec vi (without force) , nec clam (without secrecy), nec precario (without permission)
- 2) User must be 'continuous'
- 3) User must be on behalf of one fee
simple against another fee simple owner
- 1) User must be 'as of right:'must be nec vi (without force) , nec clam (without secrecy), nec precario (without permission)
- Modes of prescription:
- Implied grant
- law reads the grant of an easement into a document or agreement
- Under Wheeldon v Burrows: acquisition of easement by implied grant. quasi-easement
- Where the grantor, the
owner of the servient land,
disposes of part of its land
- law reads the grant of an easement into a document or agreement
- By express grant or reservation:
- To satisfy as an easement, 4 characteristics under
R v Ellensborough 1956:
- Casebrief: residential properties had been given
a right of common enjoyment of a park which
was adjacent to their houses and which was
vested in trustees. This right was held to have
been validly granted as an easement
- 1. a dominant and a servient tenement
- benefit must be attached to one piece
of land (dominant tenement) & burden
must be exercisable over another piece
of land (servient tenement)
- easement cannot exist in gross ie. to unattached piece of land
- benefit must be attached to one piece
of land (dominant tenement) & burden
must be exercisable over another piece
of land (servient tenement)
- 2. the easement must accommodate the dominant tenement
- 3. the dominant and servient owners must be different persons
- 4. the easement must be capable of forming the subject matter of a grant
- Capable grantor/grantee
- Capable grantor/grantee
- Rights cannot be an easement if:
- 1) Requires servient owner to spend money
or
- 2) Amounts to exclusive possession of
servient land
- 3) Is not exercisable over right
- 1) Requires servient owner to spend money
or
- Casebrief: residential properties had been given
a right of common enjoyment of a park which
was adjacent to their houses and which was
vested in trustees. This right was held to have
been validly granted as an easement
- Problems
- Courts reluctant to recognise new easements e.g. Hunter v
Canary Wharf [1997]: no easement of a clear view Hill v
Tupper (1863): easement to hire pleasure boat= not easement,
does not accomadate canal bank
- Courts reluctant to recognise new easements e.g. Hunter v
Canary Wharf [1997]: no easement of a clear view Hill v
Tupper (1863): easement to hire pleasure boat= not easement,
does not accomadate canal bank
- Termination of easements by:
- Merger: union of
dominant and
servient
- Release
- Express: servient owner
acts upon promise been
released from burden of
easement
- Implied: non-user not
sufficient although
easement has not been
used for a long period
- Statute
- Express: servient owner
acts upon promise been
released from burden of
easement
- Change of character:
change of dominant
tenement
- Merger: union of
dominant and
servient
- IN LAW (deed):
- When created by competent grantor & created by
deed,equivalent in duration to legal estate in land,
expressly acquired (grant/reservation) in respect to land
- Enforcement against 3rd party:
- REGISTERED LAND:
- Expressly acquired: registration by s27 LRA 2002 to make
easements legal
- Impliedly acquired: amounts to overriding interest under s3 LRA 2002
- Expressly acquired: registration by s27 LRA 2002 to make
easements legal
- UNREGISTERED = binds whole world
- REGISTERED LAND:
- When created by competent grantor & created by
deed,equivalent in duration to legal estate in land,
expressly acquired (grant/reservation) in respect to land
- IN EQUITY (written
agreement)
- Created in compliance with S53 LPA1925 or by
equitable estate owner or an attempt to create
legal easement fails to meet legal formalities
- Enforcement against 3rd party:
- REGISTERED LAND: Expressly or impliedly acquired:
where entered as notice on charges register, servient
land will be binding
- UNREGISTERED LAND: will not bind
legal purchaser of legal estate for
money
- REGISTERED LAND: Expressly or impliedly acquired:
where entered as notice on charges register, servient
land will be binding
- Created in compliance with S53 LPA1925 or by
equitable estate owner or an attempt to create
legal easement fails to meet legal formalities
- Remedies
- Abatement: allows dominant owner to
remove obstruction that prevents him
from enjoying exercise of easement
- Damages: is substantial
interference with enjoyment of
easement: Weston v Lawrence
1961
- Injunction: restrain interference of
right that dominant owner complains it
will be justified where infringement is
trivial
- Abatement: allows dominant owner to
remove obstruction that prevents him
from enjoying exercise of easement
- PROFITS A PRENDE
- Allows person to go into land of another,
servient land and take natural produce which
itself capable of ownership.
No need for dominant tenement as profit can exist in gross.
- Allows person to go into land of another,
servient land and take natural produce which
itself capable of ownership.
No need for dominant tenement as profit can exist in gross.
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