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Law - Essay Example

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The question requires a comparison as well as contrast between section 62 Law of Property Act and the rule in Wheeldon v. Burrows in respect of acquisition of easements. A general analysis in respect of easements would be looked into before comparing and contrasting the aforementioned different procedures of acquisition. …
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Download file to see previous pages The development of each of these areas of law would be discussed in turn and any similarity as well as difference would looked into so as to make an effective comparison between the two difference applications that have been provided for that is one by way of statute and the other would be that of the rule of Wheeldon v. Burrows and the cases that have effectively developed the rule and applied the provision. Easements are where a benefit is provided to the dominant tenement that is the land which benefits from the easement, which provides the person who owns the dominant tenement of land to use the easement. The second element in respect of an easement is the based on the fact that since there is a benefit that is accruing there is a burden on what is known as the servient tenement or in other words the land that has been burdened by the easement. A vital principle related to an easement is the fact that it is a proprietary interest and the accruing benefit and burden, subject to the laws of registered and unregistered land, transfer, if the land that is either the servient or dominant tenement is transferred to another person. (Cursley et al 2009) The creation of an easement is dependent upon the satisfaction of a criterion that had been laid down in Re Ellenborough Park1 which are generally referred to when determining the existence of an easement. The first and foremost requirement is the fact that there must be a dominant and servient tenement thus eliminating the possibility and stating that the easement cannot exist in gross. (Hawkins v. Rutler)2. The second requirement is the fact that the dominant and servient tenement’s occupation and ownership must be by different persons (Roe v. Siddons)3. However, according to Wright v. Macadam4 the occupation by different persons would allow an easement to be created. The Third element is the fact the easement must benefit the dominant tenement and this is dependent upon the proximity of the servient tenement; it also been stated that the advantage should not be purely personal (Hill v Tupper); and the right must not that be of a recreational user. The fourth criterion is that the easement that has been alleged must be capable of formation of subject matter of a grant. Case law has developed upon the criterion and has provided guidelines in this respect, the first one being that there must be a capable grantor, which is clear in the facts at hand, the second that there must be a grantee which is evident because the tenants were granted the rights; thirdly the subject matter of grant is sufficiently certain, which is clear enough in respect of the facts that is the right to cross; and finally the right must be capable of being called an easement that is it is covered under the rights which have been recognized to be easements, which has been done in respect of the right to cross. The final factor that has not been expressly listed down in the case was that of public policy which is considered when determining whether an easement is existent or not. (Grey et al 2006) The next aspect that is considered is that easement can be existent either legally or under equity as laid down under section 1 of the Law of Property Act (LPA) 1925. (Cooke 2006) As far as legal easements are considered there are a number of formalities that need to be fulfilled. The first requirement is that for a legal easement there must either be a fee simple absolute in possession or as an adjunct to a term of years (section 1 Law of Property Act 1925). Secondly easements can only be legal if created by way of statute, by prescription, by deed or registered disposition. All other easement are equitable in nature. (Dixon 2004) As far easement by prescription is ...Download file to see next pagesRead More
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