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Easements Notes

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EASEMENTS Definition
? A propriaryright to do something on servient land or to prevent something from being done on it
= E.g. right of way, right to light but no finite list
= Capable of binding Ps - a right in rem
? Can't exist in gross
? Doesn't have to be identified in the doc creating it - court will look surrounding circs
? Can't be granted in advance of ownership (London Blenheim Estates Ltd v Ladbroke Retail Parks Ltd)
? Rule in Harris v Flower - dominant owner, who acquires additional land adjacent to/close by dominant land may wish to use existing easement of its benefit but will usually be unable to do so without committing trespass

1. Is the easement capable of arising?(ReEllenborough) (1) Dominant &servient tenements (2) Easement accommodates the dominant servient
? Benefits the land, not the owner personally o Moody v Steggles - commercial benefit doesn't exclude it immediately but it must be necessary for proper use of land, not just the business. Dominant owner had right to advertise his pub/inn: accommodated dominant tenement b/cservient land situated in front of the pub.
? Purely personal or commercial advantage won't suffice o Hill v Tupper - a canal company leased land behind canal and, when also rented out boats to be used there, Mr H objected. Held his exclusive right to put boats on canal wasn't an easement but a personal advantage b/c P tried to set up, under the guise of easement, a monopoly which had no normal connection w/ordinary use of his land but was merely an independent business enterprise.
? Right to use communal gardens satisfied the test in ReEllenborough b/c: a. enhanced the value of property to some degree
? not decisive b. physical proximity b/wservient& dominant tenements
? no objection to houses not immediately bordering the tenement but being slightly away c. the benefit can be conferred on a no of different owners simultaneously or be taken advantage off
? Distinguish certainty of right to use communal gardens attached to dominant residential land v. uncertainty of a right to wander at will over large defined area.
? Although portrayed as questions of fact, these are value judgments made taking into acc. social conditions, technical advantages & accepted models of property use. (3) Dominant and servient owners are different people in s4eparate ownership & occupation
? Can't have an easement over own land (a) Tenements come into same ownership = easement extinguished/temporarily suspended (b) Dominant tenement is sold off = easement recreated via implied grant (4) The right is capable of forming the subject matter of a grant (i) Capable of being granted by deed (ii) Grantor & grantee legally capable
- w/requisite capacity and title to create an easement (iii) Right sufficiently certain - it's clear what dominant owner can do & what's the nature & extent of burden to which servient owner must submit
- No right to: i. uninterrupted right to light, air, view

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