Understanding Easements: Definition, Characteristics, and Requirements, Study notes of Law

Download Understanding Easements: Definition, Characteristics, and Requirements and more Study notes Law in PDF only on Docsity! TOPIC 11: EASEMENT WHAT IS AN EASEMENT Definition: a right enjoyed by the owner of one piece of land (called the dominant tenement), the exercise of which interferes with the use and occupation of another piece of land (the servient tenement). As an in rem right, they run with the land. Easements may be positive or negative in nature. A positive easement gives a right for something to be done – e.g. a right to walk or drive across land. 
 A negative easement gives a right to prevent something being done – e.g. a right to receive light to a defined aperture (restricts the height of buildings on the servient land). 
 The owner of the dominant land can bring an action in nuisance against anyone who interferes with an easement. 
 ESSENTIAL CHARACTERISTICS OF EASEMENTS 
(Re Ellenborough Park; Riley v Pentilla) 
 1. There must be a dominant and a servient tenement ▪ Must be one property that is benefits (NOT profits) from the easement (dominant tenement) and another property that is subject to/burdened by the easement (servient tenement) 
 ▪ The instrument creating the easement need not expressly identify the dominant tenement although it must be capable of being identified by the surrounding circumstances ▪ An easement can’t benefit the public at large 
 NOTE According to Bradbrook: easement is a privilege without profit. It is: not a lease: easement must NOT amount to exclusive use or possession of the servient tenement. not a licence: easement must be created at common law by deed of grant, whether actual, implied, or presumed. A licence can be created without these formalities. An easement requires a DT and ST – a licence does not require a DT and so can be in gross. A licence can be used to grant general possession of land. not a restrictive covenant: easements and restrictive covenants overlap to a significant degree. Differences: easements may exist in either law or equity, whereas RCs are purely equitable. Easements may be acquired by prescription (RCs cannot be). Easements are broader in scope than RCs) ▪ Cannot have an easement that is not attached to land/that is not attached to the dominant 
tenement (this is an easement in gross) 
 Exception: legislation creates certain easements in gross – no requirement that it benefit land 
 o E.g. easements held by a service provider such as a water authority for the placement of pipes, drains or cables under or over land 
 ▪ Australia case law makes it clear that the instrument creating an easement need not expressly identify the dominant tenement. This rule applies to both Torrens land and General Law land. 
 ▪ The dominant tenement need not be solely corporeal real property – it can be solely incorporeal property, or both. 
 1. Easement Must be For the Benefit of Dominant Tenement 
 ▪ Easement must be reasonably necessary to facilitate the convenience and better enjoyment of the dominant tenement as land (question of fact) (c.f. connection to the owner at the time) (Re Ellenborough) 
 o An easement is limited to the needs of the dominant tenement; the guise of an easement can’t be used to establish a business enterprise, which has no normal connection with use of the dominant tenement. o An easement is limited to the needs of the DT, and the needs must relate to the LAND itself, not a benefit to the person in occupation ▪ Determine as a question of fact by the surrounding circumstances ) (Re Ellenborough) 
 ▪ But, an easement may accommodate a business carried out on the dominant tenement provided that the business is tied to the dominant land (Copeland v Greenhalf) ▪ Relevant (but not determinative) that the easement enhances value of the property – must show connection to the normal enjoyment of land (Ellenborough) 
 ▪ The two tenements need not be neighbouring (but close enough for the servient to ‘accommodate’ the dominant tenement). 
 2. The Two Tenements Cannot be Owned and Occupied by the Same Person ▪ Rationale: a person cannot acquire rights against themselves ▪ Cannot have easement over own land [but can have easement where one lot is occupied by LL and the other as tenant, just not an easement by prescription] 
 ▪ Easement not invalid unless both tenements owned and occupied by the same person. 
 ▪ If the dominant and servient tenements come into the same ownership the easement is extinguished.