The Current Law in England and Wales, Its Deficiencies and the Future - Essay Example

Download file to see previous pages The question arises whether there should be scope for an easement creation that is not attached to the dominant tenement. This is known as an easement in gross which is not valid by law. Now the law that no easement can prevail in gross is frequently criticized on the ground that the law is established on the most fragile basis that is no more convincing. So the question arises if there is any good reason to hold on to this rule or should easements in gross be granted.

For example, rights related to easements in gross would be applicable in many cases such as the right to land helicopters, easements for maintenance of telephones or cable connection over other land or pipelines, and even the easement to park lorries along the normal routes according to convenience. So easements in gross would be a convenient option in such cases. In the UK such rights are given in terms of statutes giving specific power to public utilities and departments to enter private lands for the installation of such services. Easements in gross would entail two problems to be dealt with. Firstly, it might be difficult to market the servient land because identification of the person who is empowered to establish the easement. Secondly, the servient tenement might be under pressure of overuse.

The first problem can be dealt with if the servient tenement can identify the individual empowered to implement the easement. In that case, the easement needs to be registered against the servient land and in the name of the person who can implement the easement. Hence the present view is that such easement in gross should not be permitted since the abolition of such easements might result in the imposition of undesirable obligations by one party on another. Similarly the other requirement i.e. the easement must accommodate and serve the dominant land, needs to be unaltered as per the present opinion.

The rule that the dominant and servient lands should be owned by different persons needs to be reviewed owing to the negative outcomes that might be generated through it is rational in certain cases. The Simper v Foley case shows that the single ownership of both lands kept the easement suspended until ownership was single and the moment it was divided, the easement came back into existence. ...Download file to see next pages Read More