What is an easement? What types of easements are there? A private easement is a property right to make a limited use of land by someone other than an owner.
It cannot give exclusive possession, and must be for the benefit of other land the dominant land. An easement in gross is an easement for the benefit of the holder of the easement usually a service provider which is not attached to dominant land.
It is not recognised at common law and is a creature of statute. An example might be a drainage easement along the rear of a number residential properties in favour of a water authority.
An implied easement is an easement that is not expressly created by grant or reservation in an instrument or by statute but is implied by common law or statute so that the land can continue to be used in a particular way. A prescriptive easement is an easement acquired by using land for at least 20 years without secrecy, permission or force. What are the key elements of a private easement? There must be a dominant and servient tenement; the easement must accommodate the dominant tenement; the owners of the dominant and servient tenements must be different from each other; and the right or claim must be capable of being the subject matter of a grant.
How do I know if land is burdened by an easement? How do I know if land is benefited by an easement? A row of ten terraced houses in a city was built 50 years ago. The houses front onto a public road, but the drain serving all ten houses was laid along the rear of the houses to the last house in the row, and then connects through its driveway to the public sewer, which is located in the public road.
The solicitor making the enquiry wanted to know if it was necessary for his client to seek a grant of a wayleave from all the relevant neighbours or to seek to register a wayleave through the PRA or apply to the Circuit Court for an order, and then seek to register the same.
There are a great many examples where a wide variety of houses in a row or terrace, or in a building estate, both old and new, are served by drains that do not have the benefit of a formal grant of easements, or where the easements granted by the first deed of sale are incomplete.
Section 40 is very clear. The question is whether that subsection would apply retrospectively to subdivisions that took place many years before. Burrows is abolished and replaced by subsection 2. Based on the presumption that a statute is not retrospective, the committee takes the view that section 40 operates only in respect of transactions entered into since 1 December The committee is of the view that the provisions of section 40 will apply to all situations where implied easements arose from a deed entered into after 1 December The committee takes the view, in the case of the example raised by this query, that easements would be implied at common law by the doctrine of nonderogation from grant under the Rule in Wheeldon v Burrows , or as easements of common intention where the deed dates from prior to 1 December , with section 40 replacing the Rule in Wheeldon v Burrows as an available method of implication where the deed was executed after that date.
This should also apply in all situations, such as those detailed in the paragraph 2 above, where an easement arose by implication prior to the act. Implied easements run with the land, originally by virtue of section 6 of the Conveyancing Act and, after 1 December , by virtue of section 71 of the act, unless a contrary intention was expressed in the deed.
This article examines the different means to extinguish an easement. Easements can be created in four ways: express grant in writing, implication from prior use, implication from necessity, and prescription.
When the dominant estate is transferred, the easement passes to the subsequent owner through appurtenance clauses even if there is no specific mention of the easement in the deed. There are eight ways to terminate an easement: abandonment, merger, end of necessity, demolition, recording act, condemnation, adverse possession, and release.
In order to prove abandonment, it is necessary to establish not only an intention by the dominant estate holder to abandon the rights to the easement, but also some overt act or failure to act, which carries the implication that the owner neither claims nor retains any interest in the easement.
However, the act must unequivocally reference the intent to abandon the easement and clearly demonstrate that the dominant estate owner is permanently relinquishing all right to the easement and not merely deserting it for some temporary period. An easement once granted may be ended by merger. Under the merger doctrine, an easement will terminate when the dominant and servient estates become vested in one person.
To satisfy this, there must be a complete unity of the dominant and servient estates, meaning that one person or entity owns the entire plot of land.
When only a portion of the servient or dominant estate is acquired, there is no complete unity of title. Therefore, the easement still stands. Many easements find their origins in situations where one owner owned the entirety of a piece of property that the owner subsequently decided to subdivide into various lots. Just as such a grant in writing is only one means of creating an easement, merger—when various lots burdened by easements and benefiting from the easements come under common ownership—is one of the most important means for destroying an easement as it allows a developer a financial means to extinguish an easement as long as a willing seller is available.
Easements created by necessity terminate when the necessity comes to an end. Imagine a landowner has a fairly substantial piece of acreage and decides to subdivide it into lots and one of the lots the owner creates is completely landlocked inside the other lots. As the owner sells off those lots, the sale creates an easement of access on those lots enabling the owner of the landlocked lot to access the highway.
This is an easement of necessity. Even when no agreement exists as to the right of access, the owner requiring access has a right to it. But when a new means of access becomes available and the original necessity perishes, the landowner loses its right of access. An easement in a building or land will terminate when that burdened building or land is completely destroyed.
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