Easements

Question 1

What is an Easement?

Answer 1

An Incorporeal property right which runs with land rather than person

Question 2

How is an Easement described as a Servitude?

Answer 2

• Having control of someone’s land but NO freedom over it.
• ‘Profit a Pendre’ = making money off someone’s land

Question 3

What are the 2 types of Tenement?

Answer 3

Dominant and Servient

Question 4

What is a Dominant Tenement?

Answer 4

land that enjoys the benefit of that right

Question 5

What is a Servient tenement

Answer 5

the land that gives the right for another landowner to use in particular way

Question 6

How can Easements become established?

Answer 6

1. By express agreements
2. Created by statute
3. Implied by Common Law

Question 7

What is expressing agreement on landowners?

Answer 7

• Owners of adjacent property can agree to create an easement
• Easement does not belong to person but rather RUNS with land –> continues to exist no matter who owns the land

Question 8

What is created by Statute?

Answer 8

–> Things such as sewerage, electricity connections etc
–> ‘Easements in Gross’ b/c no dominant tenement who specfically benefits from the eastment, rather the benefit is more broadly distributed

Question 9

What is Implied by Common Law?

Answer 9

–> Recognition b/w land owners even if not created by agreement

Question 10

What are the 2 steps for determining an Easement?

Answer 10

1. Identifying whether an arrangement meets the 4 requirements of an easement
2. If it meets these 4 requirements –> has it been VALIDLY created?

Question 11

What are the 4 essential requirements?

Answer 11

1. Must be dominant and servient tenement
2. Must be owned by separate people
3. Right must accomodate the dominant tenement (BENEFIT the land, not the owner)
4. The right must be ‘capable of being the subject matter of a grant’ (must be capable of an easement)

Question 12

When something must be ‘capable of being the subject matter of a grant,’ what does it mean?

Answer 12

1. Must not be a mere right of recreation which carries no utility or benefit to the dominant tenement
2. Must not be too vague or wide
3. Must not be inconsistent w the ownership or possession of the servient land

Question 13

How can Easements be validly created?

Answer 13

Implied or Express Eaesments?

Question 14

What are the diff types of Express Easements?

Answer 14

• Documents
• GLL = made by document
• Torren’s = deed + folio of register may contain a record of easement, though, it is NOT invalid if you fail to do so (s42 TLA)
• ‘Express Reservation’ = subdivide a plot of land –> enables new plots to be sold w easements alr created so responsibility does NOT need to fall on new purchasers

Question 15

What are the diff types of Implied Easements?

Answer 15

• Easement by necessity = landlocked plot
• Common Intention Easement = implied where there is clear mutual intention for an easement to exist e.g. right of way through the common area or access maintenance services
• Wheeldon v Burrows Easement = Implied where two adjacent plots are owned by the same person (but NOT via subdivision) -> owner has been using the plots as though an easement exists b/w them -> and then the owner sells one plot to anohte rperson  easement can officially come into being same person –>
• s12(2) Subdivision Act 1988 = expressly create if you subdivide a plot
• A Long Use Easement = easement implied where there has been open and uninterrupted use of a right for 20 yrs, and servient owner has acquired

Question 16

How can Easements be removed?

Answer 16

1. Abandonment = if owner of DT makes clear that successors will NOT make use of easement –> can be considered abandoned.
2. Express Release –> parties affeted by easement may expressly agree to terminate easement
3. Unity of DT/ST –> easement becomes suspended if under same owner
4. Statutory Extinguishment under s73 –> easements may be removed if NOT needed