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LAND LAW - Essay Example

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Land Law [Name] [IDs] [Date] [Course 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…
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Download file to see previous pages... 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 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 ...Download file to see next pagesRead More
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