7) Easements intro.docx - LW303 LAND LAW 2019-20...

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LW303 LAND LAW2019-20Introduction to EasementsReadingMartin Dixon, Modern land law, 11thed., chapter 7: “The law of easements and profits”.Key caseRe Ellenborough Park[1956] Ch 131The nature of easementsAn easement is an interest in land-a type of right less than ownership of a legal estate-whichentitles the owner or tenant of one piece of land to exercise rights over another piece of land.Theserights may bepositive easements(the right to perform some activity on the other owner’s land, e.g.to use a path or to park a car) ornegative easements(the right to stop the owner of the other pieceof land from performing some activity on his own land, e.g. a right of support or a right of light).Unlike the law relating to freehold covenants (where the distinction between positive and negativecovenants has important consequences when land changes hands), there is no substantive differencein the way that the law treats positive and negative easements.Easements should be distinguished from the (closely-related) category of “profits à prendre”, oftenshortened to “profits”, which are rights to enter someone else’s land and take something from it (e.g.fishing rights, or rights to extract minerals).Profits à prendre are not part of our syllabus.We willalso not consider public rights, such as public rights of way and the rights given by the Countrysideand Rights of Way Act 2000.A wide range of easements has been recognised in English law, and it is clear that there is no “closedlist” of easements.To quote a famous line from a Scottish case decided by the House of Lords:The category of servitudes and easements must alter and expand with the changes that takeplace in the circumstances of mankind:Dyce v. Lady James Hay(1852) 1 Macq. 3051Recent examples of situations where the Supreme Court has recognised new types of easementsinclude (perhaps controversially, and as anobiter dictum) the right to make a noise:Coventry v1 Note that the word “servitudes” in this quotation refers to Scottish law (because this was a Scottish appeal):the word “servitudes” in Scottish property law (and in the law of many other countries whose legal systemsderive from the Civil Law, i.e. from principles of Roman law) is broadly equivalent to English law’s “easements”.1

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Term
Fall
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Law, Real property law, Martin Dixon

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