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Land Law - Coursework Example

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Question 1 The legal issues arising out of Margaret’s sale of three terraced houses to Arthur, James and Barry, and Arthur’s subsequent sale of his purchase to Samantha involves the law of easements or right of way. An easement is defined as a right over another’s land and if the easement is comprised of a proprietary interest in realty, its benefit and burden can pass to successive owners…
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Land Law
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Land Law

Download file to see previous pages... The Court of Appeal provided that the four essential characteristics of an easement must exist. First there is required to be a dominant and servient tenement in which a benefit (to the dominant tenement) and burden (to the servient tenement) are each defined. Secondly, the easement must be capable of benefiting the dominant tenement. Thirdly, the dominant and servient tenement must own and occupy different pieces of land. Fourthly, the easement must be one that is capable of being created. In other words, the person creating the easement must have the authority to do so and the recipient must have the right to accept it. The easement must be unambiguous and the servient tenement may not be denied excessive rights.2 An evaluation of the facts of the case demonstrate that there are benefits and burdens, in which the dominant tenement acquires a benefit and the servient tenement is not denied too many rights. For example, Margaret permitted Arthur to park his caravan in her garden with the understanding that she could sit a satellite dish on his roof. Since this was placed in the Conveyance of registered title, it is a legal easement. Section 1(2) of the Law of Property Act 1925 essentially provides that a legal easement arises once it is conveyed.3 Likewise the easement permitting James to temporarily store material in Margaret’s garden is also a legal easement since it is conveyed via the conveyance. Moreover, by placing these easements in the conveyance, the requirements contained in Section 52 of the Law of Property Act 1925 which mandate that a legal estate in land may only be created by deed.4 Moreover, as registered land, the easements will not be legal unless they are registered.5 In other words only those easements expressly created in the conveyance of registered land will be binding on the dominant and servient tenements. Therefore the oral agreement that Arthur may hang a sign advertising his business on Margaret’s wall is not binding on Margaret and successive owners. To this end, Barry as a successive owner of Margaret’s property is at liberty to have the sign removed. Wheeldon v Borrows however, indicates that Barry might be bound by the oral easement which creates an equitable right. In this case Thesiger LJ delineates the circumstances in which a right created by an easement that was not express, can be acquired by a successive owner over the land. According to Thesiger LJ, successive owners acquires all of the obvious and continuous easement or any easement that is essential for ensuring that the property is reasonably enjoyed provided that easement was used by the vendor just before the property was sold. However, the second rule expressed by Thesiger LJ in Wheeldon v Burrows suggests that Barry may not be bound by the oral easement. By virtue of the second rule, where the vendor sells adjourning land and fails to give expression to an implied or imperfect easement, he may not claim it at a later date.6 It therefore follows that since Margaret failed to expressly provide for the right to hang a sign on her wall, she was not bound by this easement and as such cannot pass the easement on to successive owners of the land. It would appear that each of the easements that were ...Download file to see next pagesRead More
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