Tuesday, September 12, 2006
Easements
It always pays to carefully scrutinize the title of a property being bought and sold.
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At Common Law, the Doctrine Of Privity Of Contracts states that only the parties to a contract can enforce the rights under it. This Doctrine, however, does not apply to contracts which create an interest in land. Therefore, if 'A' grants a right of way over his property to 'B', and 'A' then sells his property to 'C', 'C' is bound by the agreement between 'A' and 'B' if he had notice of it before he bought. As a result, interests in land are said ‘to run with the land’. In order to be enforceable, of course, agreement creating an interest in land, such as the aforesaid right of way, must be registered on title.
One important classification of an interest that attaches to a parcel of land as opposed to an individual, and which therefore runs with the land, is that created by an easement. In its simplest form, an easement is a privilege acquired by a landowner for the benefit of his land over the land of another. The land receiving the benefit is the dominant tenement, and the land over which the right is exercisable is the servient tenement. Real property law stipulates that, in order to constitute an easement, three elements must be present:
[ ] There Must Be A Dominant And Servient Tenement.
Simply put, this means that there must be two parcels of land affected by each and every easement. In other word, 'A' cannot grant an easement over his property to 'B', unless 'B' owns a piece of property either adjacent to 'A'’s or sufficiently near 'A'’s, which is to benefit from the easement. Attempting to create an easement without attachment to a parcel of land is referred to as an ‘easement in gross’, and it is not a true easement.
[ ] The Easement Must Accommodate The Dominant Tenement.
It is the land that must benefit from the easement, not merely the landowner. If the owner alone obtains the benefit, then it is not an interest in land. The right would only be a contractual licence, and the Doctrine Of Privity Of Contracts would apply. The test applied by the Courts to determine whether an easement or a licence has been created, is whether or not the right makes the dominant tenement a better and more usable piece of property. For example, a right of way may give better access to the dominant property. In some cases, where the right benefits a long-established trade conducted on the property, this has been held to be sufficient to create an easement. It is important to note that the servient tenement must be close enough to provide a practical benefit, although it does not need to be adjoining to the dominant tenement.
[ ] The Easement Must Be Capable Of Forming The Subject-Matter Of A Grant.
In other words, the easement must be capable of a reasonably exact definition. This means that one must be able to identify its boundaries, and the person granting the easement and the person whose land receives the benefit of the easement must both have the necessary legal capacity to be grantor and grantee respectively. For example, a tenant cannot create an easement which binds the property after the tenancy expires.
Examples of easements include rights of way, rights to light and rights of support, as in the case of buildings. Every parcel of land has a natural legal right to receive both vertical and lateral support from the adjacent soil. So therefore, if a neighbour excavates up to the property line and, as a result, the adjoining lot subsides or collapse, he will be liable in damages for depriving the adjoining owner of his right to support. However, buildings on the land do not have the natural right of support at law given to the land itself, so it is necessary to grant an easement of support in order to protect them.
Easements may be granted for any length of time. They may be created by statute, in an express document, by implication of law or by ‘prescription’ (at Common Law known as “squatters’ rights”). A statutory easement does not, of course, need to fit the above-listed requirements. Examples include public rights of way, such as those needed to construct power lines. An example of an easement created by an express document would arise where a deed of property granted or reserved a right of way. This type of easement is by agreement between the owners of the dominant and servient tenements.
An implied easement will result if the intention of the party granting the easement has not been sufficiently explicit. Implied easements may arise in a number of situations. For example, an implied easement would arise in the case where one of two commonly supported houses has been sold, and no mention was made of any easement of support (as it is common in the sale of one-half of a side-by-side duplex). Finally, an easement of necessity will be implied in the instance where a building is severed, and commonly used stove-pipes interconnect both buildings.
An easement may be released by an express agreement between the current owners of the dominant and servient tenements. It will also be released by implication, if the dominant owner shows an intention to release it, for example, by abandonment.
Luigi Frascati
Real Estate Chronicle
