Summary: Ws8 Easement

Read the summary and the most important questions on WS8 Easement

• 2 STEP 2: Is each right capable of being an easement? what are the essential characteristics under (Re Ellenborough Park)?

• What is the definition of an easement? Can it be positive and negative?

  An easement is a right over land which imposes a corresponding burden on another neighbouring land. Positive = right of way (L makes use of neighbouring land X for the benefit of his land -> L (benefit) + X(burden) or negative = restrict a person from building on the land (limited).

• 2.1 (a) a dominant and servient tenement

• Will the easement be valid if the requirements of a dominant and servient tenement are not met? 

  There must be two separate pieces of land with a dominant (benefit of easement) and servient (burden of easement) tenement. [e.g., B grants A a right of way to cross B's land]. 

• Would it be possible to grant an easement where B, who owns the land, grants the right to C who does not own land? (Rangeley v Midland Railway)

  There must be both a servient and a dominant tenement as you cannot have an easement in gross, (ie. must own land).

• 2.2 (b) easement must accommodate the dominant tenenment

• Is it important that the right enjoyed by the dominant tenement is sufficiently connected to the land? (Re Ellenborough Park)

  The right (benefit) must be connected with the normal enjoyment of the property and not just enhance the dominant tenements own land.

• Is it important that the dominant and servient lands are nearby (Bailey v Stephens)?

  Must be sufficiently proximate (nearby).

• 2.3 (c) the dominant and servient tenement must not be owned and occupied by the same person

• Can the dominant and servient tenement be owned and occupied by the same person?

  The 'dominant and servient owners must be different persons' (Cheshire's modern Real Property).

• 2.4 (d) the right over the land must be capable of forming the subject matter of the grant

• Is it neccessary for the right of easement to be granted in a deed?

  The right must be granted by deed.

• Is it essential for there to be a capable grantor and grantee?

  Must be a capable grantor (servient tenement) and grantee (dominant tenement).

• 2.4.1.1 Whether the right is expressed in language which is too wide and vague

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• Explain why Lord Brougham LC was in opposition of the law recognising novel kinds of personal enjoyment such as 'right to view' in (Keppel v Bailey)?

  Detrimental and confusing if a right is too wide.

• Explain the contrasting judgement in (Dyce v Lady James Hay) by Lord St Leonards?

  'The category of...easements must alter and expand with the changes that take place in the circumstances of mankind'.