Prescription is the method by which the law gives legal
recognition to the existence of an easement which has been
enjoyed over a long period as if it had been created initially
by a formal grant. An easement is an incorporeal hereditament
which is essentially a minor interest in land. The ownership of
an easement is a mere right which confers certain rights over
the land in question, but never any exclusive right to
possession. An easement allows a land owner, by virtue of its
ownership of its land, to exercise rights over adjacent lands.
These include rights of way, light and water. The common law
recognises an easement as enforceable by or against successors
in title to the parties who originally created it. The key
features of an easement are as follows:
There must be a user of the right;
Use of the right must be continuous and not intermittent;
The use must be capable of forming the subject matter of
Creation of an Easement
To create an easement four essential characteristics must be
Dominant and servient tenement
The easement can only exist if it is annexed to a piece of
land. It cannot exist independently of the land which is
benefited by it. It must also be connected to the land and
improve its amenity, utility or convenience. An easement
essentially involves the existence of two pieces of land that
is, the dominant and servient tenements. The dominant tenement
is the land benefited by the easement and the servient tenement
is the land over which the easement exists.
Accommodation of dominant tenement
The easement must benefit the land of the dominant owner.
Accordingly, there must be sufficient proximity between the
dominant and servient tenement to allow a practical benefit to
be conferred on the dominant lands. If the right confers a
personal benefit only on the owner of the dominant tenement,
this is not classified as an easement.
Ownership or occupation by different persons
The dominant and servient lands must be held under separate
and distinct ownership. The only exception to this general rule
is that an easement can exist if there is a common owner of the
two tenements if the occupation of them is not common. A common
example of this is where one person owns neighbouring lands and
is leasing part of the lands to a tenant.
Subject matter of the grant
The right contained in an easement must be capable of
forming the subject matter of a grant. This means that every
easement must be...
The Law On Easements
|Author:||Ms Linda Conway|
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