Law relating to land is a form of law that analyzes the various rights that one can enjoy for the use of a property that could either be in his possession or another person’s possession. Such rights include the enviable rights to exclude others, alienate others and rights to use. These properties majorly compose the real property class and not personal property. Certain uses of land such as renting importantly define the various fields of contract and property law. As concerns matters land, encumbrancesalso contribute a lot to the rights and privileges one has on land.
Definition of easements
Easements are defined as rights for using another person’s property without actually having any possessory interests in them. They are therefore non possessory interests held by one party on another person’s property. They mostly occur on real property i.e. land. They can therefore be defined as interests in real estate and can confer on one party certain rights on property. There lies no distinction between interests and easements as easements themselves interests held in land alongside estates and encumbrances. They mostly arise in situations whereby one person develops a person’s interest in another person’s land for some defined reasons. The owner of an easement can either use it to have unrestricted right over another person’s property or could use it to prevent the use of the property of the person to which it belongs. It can be classified as either being appurtenant or gross. By being appurtenant it is beneficial and could be transferred with a certain piece of real property. These are mostly held by adjacent owners of land. It can be witnessed clearly in areas where one person uses a road that cuts through another person’s property. On the other hand by it being gross, it becomes of a private and personal nature to the owner. In most cases unless stated otherwise, they are considered non – exclusive and of a permanent nature. Other characteristics that easements generally posses include the fact that they are non revocable and do not arise from any mutual consent between the two parties involved. They can also be transferred from one party to the other. An easement that is legal is not just a personam right but a right in rem; This means that it binds in a rather permanent way the land on which it is exercised and permanently makes the land to which it beneficial available. In the case of Miller v Emcer products Ltd an easement was granted when a tenant argued the right to use a lavatory on another space of the building in which he was living. Since the tenants of that floor had allowed him to use those lavatories it was held as an easement.
Characteristics of an easement
According to Re Ellenborough Park where the owners of a house situated around a private square in Weston super Mare claimed the right to use a private garden in the middle of t h square for the purposes of exercise and relaxation and it was held that the neighboring owners had easements over the garden, Easements must possess these 4 essential components for it to exist.
There has to be in existence dominant and servient tenements. Meaning one party has the right to use (dominant) while the other party suffers he burden (servient). It must be attached to the dominant tenement so that it is transferred with the land and the bearer ought to own a land to posses these rights.
The dominant land must be accommodated by the right. This is to mean the right should benefit the land and not personal interests. In a classic example of Hill v Tupper
Both tenements i.e. the dominant and servient should not be occupied and owned by the same party. This was clearly exhibited in the case of London v Blenheim Estates Ltd v Ladbroke Retail Parks Ltd .
The granted right must have the capability of forming a grant’s subject matter meaning it can be granted by deed. It should therefore consist of a grantor and grantee both whom should be capable, must fall within the scope of rights qualifying to make easements and should also be sufficiently definite. In the case of Sweet v Maxwell v Michael & Michael Advertising,
It should be noted that servant owners should not be involved in any financial ways in the creation of an easement. The case of Crow v Wood clearly shows this. A continuous privilege agreed upon can under no circumstances amount to an easement. This was exhibited in the case of Copeland v Greenhalf .
Formation of an easement
Easements can be created through various means. These could be through express grant, implication, prior use, prescription estoppels and through statutory means. Of particular interest is creation through prescription and implication.
Creation through prescription
Such easements are called prescriptive easements. In this case a person acquires an easement through long use of a property. It’s only applicable for lands of a freehold nature. For a prescriptive easement to occur, certain conditions have to exist. Such conditions include an interrupted long use; use against a fee simple owner of the servant tenement and the right must be an easement. For instance, the recent case in the Georgian Supreme Court involving Keng v. Franklin, 480 S.E.2d 25 confirmed and showed how it is possible for a prescriptive easement to be created. This is because the driveway had been in continuous use for periods of about seven or more years. It was found that a prescriptive easement had been formed due to poor repairs and removal. A fact worth noting is that an easement through prescription can also be further acquired through three other different means:
At common law
In this case, the use of the easement must have been in existence for very long periods of time almost since time immemorial. Common law generally deals with conventions and such long periods of time would without doubt warrant creation of prescriptive easements. In the classic cases of Diment v Foot and Kilgour v Gaddes, the creation of prescriptive easement was as at common law.
Lost Modern Grant
Generally fictitious in nature its existence is thought to have been in the modern times. However the grant has been lost. Periods of about 20 running years would be enough to prove the existence of the right. In the Bridle v Ruby case,
Prescription Act 1832
This is an Act that totally changes the conventions of common law and the lost modern grant in such a way that proving that an easement has been in existence for periods of about 20 to 30 years the latter being a profit avoids the claimant’s need to prove at common law that the right has been in existence from time immemorial. However one will need to sufficiently prove that he has been the continuous user for all that periods of time.
Creation of easements through implication
These are very complex in nature and are mostly obtained in courts considering what a property is to be used for and the intentions that the original users have. They are generally a reflection of the traditions and practices that the owners have. Implied easements can also be further classified under: necessity (these occur when a land initially having an easement of access is sold or bought). For instance in the Corporation of London v Riggs (1880) case, common intention (the easement will be implied if it gives authority to the shared intentions of the parties involved). An example s exhibited in the case of Pwllbach Colliery Co. Ltd. v Woodman (1915), Law of property Act 1925 (here the implication is made as pursuance to a statute. Diversity in the ownership has to have occurred). This is clearly exhibited in the Wright v Macadam case. If one party lets out a portion of his property to another party and gives it permission to cross land it still retains then upon sale of the freehold land to the second party at a later date right to cross the retained land will be included by S.62 statute. Of importance is the fact that the first party does not have to sell the land to a second party. With enough permission, the second party may leave the land vacant and the sale could be made to a third party. The permission obtained by the second party still qualifies for an easement unless the s 62 effect is excluded. This clearly indicates hat a right is not attached to the land the person. Points worth noting include existence of a conveyance agreement like in the case of Goldberg v Edwards, Borman v Griffith and a diversity of occupation of the two parties as of the conveyance time and lastly the right must be an easement and not a mere permission as shown in the case of Green v Ashco Horticulturalist Ltd.