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Thus, by virtue of possession of a legal title to a property, the owner of a legal easement acquires the right to its unhindered use. However an equitable…
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Download file to see previous pages ment would therefore be one which has been used by a particular party for a long time and where such long term use will allow him a proprietary right of usage over the easement, even if it is situated on land that belongs to the dominant land which is owned by someone else. On the basis of this, a legal easement is one that is legally enforceable in a court of law while in the case of an equitable easement, it must be registered under the Land Charges Act if it is to be enforceable.
(b) In the case of Norman’s property, there are two easements that are under consideration (i) the lane at the rear that accesses the property and (ii) the road from Acacia road that leads over his property. Therefore, if another party acquires the title to the land at the rear of the property, the issue of legal versus equitable easement will arise in determining access and use of both these easements. In the first case, i.e, the lane at the back, Norman will still have the right to use it by virtue of it being an equitable easement, while in the case of the road in the front, the new owner will not have the right to use it without permission by virtue of its being a legal easement. The rationale for this conclusion is given below as follows:
(i) Norman is currently the freehold owner of the land at the rear and has been enjoying the right to use the lane at the back for several years by virtue of his legal interest, since it was not in fact an easement at all but a part of his property. However, when the question of its sale arises, then this lane at the back of the property will be described as “appurtenant to” the dominant land,2 which belongs to Norman. When the land is transferred under Section 187(1) of the Law of property Act of 1925, then this easement will pass with it.3. But the easement must accommodate the dominant land because what is passed is only to ensure normal enjoyment of the land rather than to provide any undue advantage.4 An easement is a right of way ...Download file to see next pagesRead More
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