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Easement Law Issues - Case Study Example

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Summary
The case study "Easement Law Issues" states that An easement may be said to be the right of one landowner to “make use of another nearby piece of land for the benefit of his own land.”1 In most cases, it is equivalent to the right of way to the dominant land. …
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Extract of sample "Easement Law Issues"

Download file to see previous pages An easement is a right of way designated for a specific purpose and it does not interfere in any way with the property owner’s rights over his land, it is merely a permanent and/or proprietary interest held by someone else over that easement and is an appurtenant, incidental to the land in question. An easement is, therefore, an interest in the land which will continue even if ownership of the land changes.

In the dispute that is at issue between Alison and Major Phelps, one of the major factors that must be borne in mind is that Alison is the freehold, registered owner of the land upon which the cottage stands and that the unmetalled road is the only way for her to get to her cottage. The first issue to be tackled is Major Phelps’ contention that no express grant to Alison exists. An express grant is generally acquired through a written document, which in this case is likely to be Alison’s deed which indicates that she is the owner of the cottage, having inherited it from her parents. Major Phelps contends that no evidence exists. According to the Land Registration Act of 2002;

This places a restriction on overriding interests arising out of easements, such as that Alison possesses over the unmetalled road. However, the restriction on the overriding interest only pertains to that granted out of registered land such as Major Phelps’ from 13th October 2003 and does not apply to easements that have existed before that. Before the Land Registration Act of 2002, equitable easements were deemed to automatically enjoy a binding status as overriding interests.4 This has also been upheld by the Courts in several cases, such as for example that of Celsteel v Alton House Holdings5. This overriding interest has been overruled by the Land Registration Act of 2002. However, Mr. Phelps’ contention that Alison does not enjoy an overriding interest by virtue of an express trust is not likely to hold good because the LRA 2002 makes it clear that an overriding interest which existed before October 13, 2003, will continue to enjoy the privilege of an overriding interest. ...Download file to see next pagesRead More
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