Equitable Easement Law Teacher
Covenants are also distinct from public rights. These include customary rights – for example, the right to hold a market in a certain place – and thus to behave in the same way as an easement. However, in order to identify a customary law, it must be proved that the use dates back to at least the year 1189 and that these are therefore rare. Common rights are more common. These are now regulated by the House of Commons Act, 2006, which established an exclusive registration system – all rights must now be registered for them to function. The new common rights can therefore only take effect by expressly granting them. [17] Rights of way are often subject to easements, but public rights of way take effect without the need for a pact. In addition to the highway, the public is also granted rights to common land and open land, which are now regulated by the Countryside and Rights of Way Act 2000. [16] The first requirement – that two different parcels of land must be affected – is at the heart of the definition of an easement. A right of way granted to a person is granted in his capacity as owner of the land; If a person who is not a landowner is granted a right of way, it is simply a licence. [5] If a right has been physically exercised for a long time by a landowner, it may be maintained (“prescribed”) as an easement with or without litigation with the owner of the property concerned (“tenement servient”). To do so, it must meet the criteria of an easement and the applicant must be able to prove that the use was not made by force, secrecy or permission and continued for a period of twenty years. [27] A landowner may or may not be aware of such land use.
The applicant for uses will see that their application will be rejected if that applicant has reason to believe that the owner is aware of and has objected to the claimed uses. [28] It has been established that: When land is registered, as is now customary, there are other circumstances in which equitable servitude occurs. [39] If dominant residential houses and serviced houses are registered, easements must be registered for both titles under the provisions of the Land Registration Act, 1925. Otherwise, they become easements only on the basis of equity, although they continue to bind buyers in accordance with Rule 258 of the Land Registry Regulations, 1925. [40] If the service property is not registered, it is likely that the easement will not have to be registered against the dominant title, even if it is registered land. However, this has been challenged and is important because if the law were to bind successors after the first registration, then a fair easement would require registration as a property tax. [41] Subsection 250(1) of the Rule allows equitable easements to arise through a limitation period if title is registered, but a right created by the limitation period would be created as a legal easement, and there does not appear to be any part of this process in which the owner of the dominant dwelling house has only a right to equity. [42] Where a registered lease has been terminated and an application for closure of title is made in the standard land registry application form, completing the application means the deletion of all entries relating to the benefit of a corresponding easement. [50] The benefit of a legal easement passes without explicit words to the next owner of this dwelling house. This was the position of the common law and is now reflected in sections 62 and 187 of the Property Law Act, 1925. If the dominant dwelling house is rented, even if only on the basis of equity, the benefit of legal servitude always passes to harvest and there remains a legal easement, although it can only be applied by the tenant in equity. [31] This is the formal legal language, based on Latin, for terminating a lease that, as in most leases, had the blessing of an easement or a number of easements.
These rights can be registered. The plaintiff must prove in a truth statement or affidavit or chain of such documents concerning the previous owners that it is used by law by or on behalf of and against the owners for a period of at least 20 years without interruption. The truth statement or affidavit must set out in detail the use and enjoyment on which the claim is based. The right invoked must be a right that could have been legally granted. The land registry has Form ST4 for a typical truth statement in relation to prescribed easements. [30] For reserved easements to be implied, they must be necessary either for the use of the land in general or for the use that the parties jointly intend for the construction of the land. [22] A fourth category, equitable servitudes resulting from the confiscation of property, is contested. Cases such as ER Ives Investments Ltd v. High and Crabb v. Arun District Council were proposed in support of their existence; However, some commentators prefer to analyze these cases in such a way as to establish a right different from a legally valid servitude or servitude. This makes an important difference when it comes to retaining third-party buyers. [38] An easement cannot be recognized if it is held jointly.
However, rights can be recognized as “quasi-easements”, which can then be implied as full easements when the land in question is transferred. [8] An easement may be expressly[54] or tacitly[55] extinguished or amended by law […].
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