This is an extract of our Reform Of The Law Of Easements document, which we sell as part of our Land Law Notes collection written by the top tier of Oxford students.
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Reform of the law of easements Characteristics of an easement : Law Com CP 186 (2008)
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
e.g. right to place power cables or right of way over land to reach helipad that belongs to neither Dom or Serv.
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?
Lead to servient land being burdened by excessive use
? Overall = keep rule
Rule is certain
Statues already get round problem in appropriate cases (e.g. laying utilities)
Don't want to allow easement to be given for anything.
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,
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?
Owned/Occupied by different people o Should adopt that proposed by Scot Law Com:
? Where two plots w/ easements fall into common ownership
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
Implied grants work already under Wheeldon v Burrows, would perhaps be unnecessary change?
Capable of Grant o Too wide and vague?
? Current law requires that right be sufficiently defined
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