Definition of user: the exercise of a right to the enjoyment of property
Requirements for a valid easement
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- There must be a dominant and servient tenement
| Requirements for a valid easement
Easements are based on the concept of ‘dominant’ and ‘servient’ tenements. An easement may be defined broadly as a right attached to a land (the dominant tenement) that gives the owner of that land a right to use the land of another (the servient tenement) in a particular way (e.g. to walk or drive across it), or to prevent the servient owner from using the servient tenement in a particular way. Such a right is enforceable by all successors-in-title to the dominant tenement against all the successors-in-title to the servient tenement, irrespective of whether the successor to the servient tenement had notice of the existence of the easement. For an easement to exist the, the following element must be satisfied: There must be a dominant and servient tenement An easement must accommodate the dominant tenement The right must be capable of forming the subject matter of a grant There must be a dominant and servient tenement It is essential that the right must be appurtenant to land- that is there must be a dominant tenement to which the right is attached. If X, the owner of white Whiteacre, grants to Y, who does not own any neighbouring land, the right to use a pathway running across the Whiteacre, Y’s right cannot be an easement. It is a privilege that is personal to Y, as there is no dominant land to which the right can be said to be attached. Y’s right will be, at most, a mere licence. But if Y is the owner3 of the adjoining land, Blackacre, then the right will be an easement, since X has granted the right not to Y personally, but to Y in his capacity as the owner of Blackacre, and the right may be said to have been granted for the benefit of Blackacre. Thus, not only Y, but also all Y’s successor-in-title will be entitled to exercise the right of way. As well as a dominant tenement, there must be a servient tenement over which the easement is to be exercised. The servient tenement must be defined sufficiently clear in the grant. This is normally done by means of a plan of the servient tenement, as in Keefe v Amor, in which the land was conveyed ‘together also with a right of way on foot or with vehicles over the land shown and coloured brown on the plan here to annexed’. It should also be noted that, where an easement is acquired by prescription- that is, by virtue of long usage and without any express grant- there will be no documents to define the dominant and servient tenements. Oral evidence will be required to establish what those tenements are. Download 50.55 Kb. Share with your friends:
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