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A more recent version of these Reform Of The Law Of Easements notes – written by Oxford students – is available here.
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Reform of the law of easements Characteristics of an easement : Law Com CP 186 (2008)
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Need for Dominant and Servient tenement o At the moment, you need a dominant land to attach easements over a servient land to.
? Proposed that should allow "easements in gross" i.e. easements over a servient land
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e.g. right to place power cables or right of way over land to reach helipad that belongs to neither Dom or Serv.
? Problems:
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Easements in gross = clogs to title o LAW Com: Only allow express creation and make sure easement registered w/ right allowed and person entitled to enforce it o Problem = nature of easement = runs with land, not person - would this mean that Z would have to re-create express easement w/ Y if land transferred from X to Z?
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Lead to servient land being burdened by excessive use
? Overall = keep rule
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Rule is certain
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Statues already get round problem in appropriate cases (e.g. laying utilities)
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Don't want to allow easement to be given for anything.
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Accommodation o Retain current law b/c
? Well understood
? Prevents unnecessary burdening upon land by imposing personal rights into land rights
? Needs to be available, unlike for leases,
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b/c leases are temporary in nature o whereas easements can be indefinite. o Problem = leases can be pretty long
? And rights within leases can be converted into easements through s.62
? If not a problem of leases, why problem for easements w/ freehold land in general?
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Owned/Occupied by different people o Should adopt that proposed by Scot Law Com:
? Where two plots w/ easements fall into common ownership
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Easements should not be extinguished o But should become "latent" until plots fall back into common ownership. o Problems:
? Might be difficult to discover "latent" easements =problem for future purchasers
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Implied grants work already under Wheeldon v Burrows, would perhaps be unnecessary change?
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Capable of Grant o Too wide and vague?
? Current law requires that right be sufficiently defined
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