An Easement confers the right to one landowner to use the land of another in some way, or to prevent it being used in a certain way. Examples of easements are a right of way and a right of light.
There are certain conditions that must be satisfied before an Easement can exist:
- There must be a Dominant piece of land (i.e. the land benefiting from the easement) and a Servient piece of land (the land over which the easement is granted);
- The right must benefit the Dominant land;
- The Dominant and Servient pieces of land must not be both owned and occupied by the same person; and
- The right must be capable of being granted by deed.
Therefore, an Easement is a right enjoyed over one piece of land for the benefit of another piece of land. The nature and extent of the right must be capable of exact description, for example the right to a good view is a matter of taste which cannot be clearly defined and so cannot exist as an Easement.
There are several reasons for granting an Easement, for example, an Easement can be granted where the owner of a piece of land/property needs to cross an adjoining property/land in order to reach the public highway. This type of Easement is called an Easement of a right of way. Another example is where the owner of a property must place underground services under the adjoining land.
One of the ways to create/acquire an Easement is by Express Grant or Reservation.
If the Express Grant or Reservation is by Deed then the Easement will be Legal. Where a Deed is not used then the Easement will be Equitable if granted in writing and for value.
N.B. A “Reservation” of an Easement arises where the seller selling off part of the land takes, i.e. “reserves”, an Easement over the land being sold for the benefit of the seller’s retained land.
The Express Grant or Reservation of a Legal Easement over Registered Land (both the Servient and the Dominant lands are registered) is a registrable disposition and so is required to be completed by registration. The Express Grant or Reservation will not take effect as a Legal Easement until the registration requirements have been met. To meet the registration requirements an application to register the Easement must be made using Form AP1.
Where both the Servient and the Dominant lands are registered, a Legal Easement should be registered against both titles i.e. the burden of the easement is registered in the register of the Servient land and the benefit of the easement is registered in the register of the Dominant land.
Where the registration requirements have been met the Easement has priority over any interests created before its grant that at the time of registration of the Easement are not protected.
The Express Grant or Reservation of a Legal Easement where the Servient land is Registered and the Dominant land is Unregistered is still a registrable disposition. Thus an application to register the Easement must be made using Form AP1. The Legal Easement will be registered on the charges register of the Servient land.
The Express Grant or Reservation of a Legal Easement where the Servient land is Unregistered and the Dominant land is Registered is not a registrable disposition, so it is effective at law when made. In other words it is automatically binding and needs no registration.
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