Lecture 7 - Easements Part 1 - The naturecharacteristics of easements

What are the three main modes of creating or acquiring an easement?

Express, Implied, and Presumed Grant (Prescription)

What is an easement in practical terms?

A right enjoyed by one piece of land over another piece of land, such as a right of way.

What is required for a claimed right to exist as an easement according to Re: Ellenborough Park 1956?

There must be a dominant and a servient tenement, the easement must accommodate the dominant tenement, the properties must be owned by different persons, and the easement must be capable of being granted.

How must an expressly created easement be established legally?

It must be created by deed and registered.

What is the 'ouster principle' in relation to easements?

A right cannot exist as an easement if its effect is to deprive the servient tenement owner of the use of their land.

What is required for a prescriptive acquisition of an easement?

The use must be ‘nec vi, nec clam, nec precario’ meaning not with force, not in secret, and not with permission.

What is the difference between 'Lost Modern Grant' and 'Prescription' under the Prescription Act 1832?

Lost Modern Grant operates on the basis of a deed that is presumed lost after 20 years; the Prescription Act requires continuous user for 20 years before the action with specific consent conditions.

What is a requirement for the easement claimed to benefit the land?

The easement must make the dominant tenement a better and more convenient tenement.

Under what conditions can an easement be extinguished?

By a deed between the owners of the dominant and servient tenements or by the two properties coming into the same ownership.

What happens if a claimed right to privacy is sought as an easement?

It cannot be recognized as an easement (as illustrated in Browne v Flower).

What does the case of Hill v Tupper illustrate about easements?

A right that provides a personal advantage, not benefiting the land itself, cannot be an easement.