Question

A        

In Re Ellenborough Park [1956] Ch 131 the English Court of Appeal outlined the essential requirements of easements.

·        Explain each of those requirements for the creation of an easement.

·        Discuss the major means by which easements may be created over Torrens title land.

·        Discuss the major means by which easements may be extinguished.

Answer 1

SOLUTION:

EASEMENT: An easement is the right of one landowner to make use of another nearby piece of land for the benefit of his own land. An easement may take many forms, however the most commonly encountered easements are as follows:

- A right of way;

- A right to light;

- A right of support

In Re Ellenborough Park [1956] Ch 131 the English Court of Appeal outlined the following essential requirements of easements:

- There must be a dominant and servient tenement;

-The easement must accommodate the dominant tenement;

- The dominant and servient owners must be different people;

- The right must be capable of forming the subject matter of a grant.

The major means by which easements may be created over Torrens title land:

An easement can be created -

- by an express grant by the servient owner to the dominant owner,

- by the express reservation of the right when the dominant owner sells part of his land to the servient owner,

- by implication,

- by a long period of use of the right, known as an easement by prescription.

The major means by which easements may be extinguished:

The following are the major means by which easements may be extinguished:

1) Expiration

An easement can terminate is if the time period for the easement’s existence expires.

2) Merger of Title

An easement appurtenant is automatically extinguished if, at any point, the same person comes to own the dominant tenement and the servient tenement at the same time. Even if the ownership is later split along the same borders of the original properties, the original easement is extinguished.

3) Release or Abandonment by the Easement Holder

An easement can be extinguished if the easement holder releases the easement.

the easement can be extinguished if the easement holder abandons the easement. An easement is considered to be abandoned by the holder if the holder does something that shows a clear intent to stop using the easement permanently.

4) Cessation of the Purpose of the Easement

If an easement is created by necessity and the necessity ends, for whatever reason, then the easement ends along with the necessity.

5) Destruction of the Servient Tenement

If the part of the servient estate that the easement applies to is destroyed, the easement will be extinguished.

An easement can only be extinguished in this manner if the servient estate is destroyed through no fault of the servient estate’s owner. If the servient estate owner intentionally destroys the subject of the easement, the owner of the servient estate will be liable to pay damages to the easement holder and the easement will not be extinguished.

6) Prescription

Just as an easement can be created by prescription (adverse possession), an easement can also be terminated by prescription if the owner of the servient tenement excludes the easement holder from the usage of the easement for the prescribed statutory period of time.