The Law On Easements

Author:Ms Linda Conway
Profession:Dillon Eustace
 
FREE EXCERPT
  1. Introduction

    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;

    and

    The use must be capable of forming the subject matter of

    a grant.

  2. Creation of an Easement

    To create an easement four essential characteristics must be

    present.

  3. 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.

  4. 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.

  5. 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.

  6. 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...

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