The Law on Easements - Essay Example

? Land Law [IDs] Number Prof] The issue in this question requires an analysis of the law on easements and whether the right of way that was used before the land was registered can be enforced once the land has been registered. An easement is one that provides a benefit to the dominant tenement that is the land that benefits from the easement, thereby allowing the person who owns the land to use the easement. The second aspect of an easement is that since there is a benefit that is conferred there is burden on the servient tenement that is the land that has been burdened by the easement. An important principle in respect of an easement is that it is a proprietary interest and subject to the laws on registered and unregistered land, the benefit and burden transfers if the land that is either the servient or dominant tenement is transferred. In respect of establishment of an easement there has been a criteria that has been laid down in Re Ellenborough Park1 which are generally referred to. The first criterion is that there must be a dominant and servient tenement and therefore the easement cannot exist in gross. (Hawkins v. Rutler)2. Clearly in respect of the facts at hand there was a land that is number 3 which was the dominant tenement and a servient tenement that is number 1. The second criterion is that the dominant and servient tenement must be owned or occupied by different persons (Roe v. Siddons)3. In respect of the facts at hand even if the land was owned by the same person according to Wright v. Macadam4 the occupation by different persons would allow an easement to be created. Thirdly the fact the easement must benefit the dominant tenement and this is dependent upon the proximity of the servient tenement; it should not be purely personal advantage (Hill v Tupper); and the right must not that be of a recreational user. In respect of the fact at hand clearly there can be seen the fact that the benefit is of the dominant tenement. 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. 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. 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 LPA 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. As far as easements by statute are concerned they are created by the Acts of Parliament, which is clearly not the case in respect of the facts at hand. As far easement by prescription is concerned it is by way of long use and is by way of common law prescription, ‘lost modern grant and/or Prescription Act 1832. In respect of easement by prescription it can be in fee simple only. Thus clearly this would not be applicable to the case at hand As far as deed or registered disposition is concerned this is done by way of a formal document which has clearly not been done in the facts. In respect of equitable easements the only one relevant to the facts is that of proprietary estoppel. The differentiation in respect of legal and equitable easement is necessary because of its effect on registered and unregistered land. As far as registered land is concerned the benefit of the easement is part of the dominant tenement and subsequently passes to the purchaser or transferee and is therefore not dependent upon whether the easement is legal or equitable. In respect of servient tenement the rights have to be registered against the title and if the rights were created before first registration of title then it is an overriding interest under s.70(1)(a) LPA 1925. Thus the easement would be dependent upon the documentation and registration against the title of Oscar. As far as equitable easements are concerned it has been stated that they exist as minor interests and must be registered otherwise they would be void against purchaser of the servient tenement. However, in Thatcher v. Douglas5 it was said by the Court of Appeal that equitable easements which are openly exercised and enjoyed could be overriding interests under section 70(1)(a) Furthermore if the person is actual occupation of the servient land then an overriding interest under s.70(1)(g) can be said to be existent The different ways in which easements are created are that of express grant that is where by way of express grant an easement is granted. The other way is that of express reservation that is where the easement is expressly reserved by the potential owner of the dominant tenement. In respect of implied creation by necessity it has been stated that implied grant must show that there has been a necessity for such creation and the same goes for implied reservation as well. In respect of the facts at hand clearly there has been no legal easement that has been created and therefore by way of equitable easement Parminder can argue that there has been an overriding interest which she can enforce against Oscar by way of s.70(1)(a) and if that is not allowed by the courts, since Oscar is the owner there can be the existence of the minor interest and therefore the right to use the back garden of number 1 and therefore this would allow her to remove the obstruction and exercise her easement. References DIXON, M. (2004). Dixon on land law. London, Cavendish MACKENZIE, J.-A., & PHILLIPS, M. (1997). A practical approach to land law. London, Blackstone Press Ltd Read More