Re Ellenborough Park 1956 court held right was appurtenant to a private

Re ellenborough park 1956 court held right was

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without utility or benefit. - Re Ellenborough Park [1956] court held right was appurtenant to a private residence and provided a clear utility & benefit to the dominant tenement. Therefore, better regarded as a ‘beneficial attribute’ rather than recreational right. ( not a mere recreational right) Formal requirements for valid Easement (pg. 572, 12.15) Registered under s46 & 47 RPA : Legal: Under s46 of the RPA, to create an easement, the proprietor must execute a transfer in the approved form. Such easement must be recorded on the folio of both dominant and the servient tenement as outlined in s47(1) RPA. Once the easement is registered, all the benefits of indefeasibility will follow under s42 RPA. Exception : some easements, gain a protection even if it is unregistered, s42(1)(a1) RPA. – Was it once registered? But is not omitted in the sense that it’s ‘not there’ anymore? )e.g. if new CT causes them to fall off the register) -Easement will be granted when the servient tenement grants right to the dominant tenement owner to accommodate the dominant tenement. -Easement will be reserved when the dominant tenement reserves a right over land for his when transferring the serivent tenement to accommodate the dominant tenement. Statutory Easements - s88B plan CA / Order of the court - s88K CA -s88B plan CA – draw plan, note easements and/or restrictions, register the plan. -S88K CA or s40 Land and Environment Court Act 1979 – court can order temporary or permanent easements – mainly to improve neighbourly relationships. EQUITABLE Easements : created in same way as old title land: (Same as the Leases equity principles) -Writing under s23C, s54A Conveyancing Act + Specific performance = signed, not registered -equitable doctrine of part performance - under s23E(d) CA, unequivocally referable test -Rule in Walsh v Lonsdale -Equitable estoppels OR everything below this (implied easements etc..) Implied grant or reservation pg 575 [12.24] Implied Reservation ( of easement = impliedly reserving rights to himself) Rule - must be expressed not implied. It is not possible to impliedly reserve easements. If the owner of the dominant tenement wishes to reserve an easement, he or she must do so expressly. ( Wheeldon v Burrows ) SEE RULE 12,26 Easement of necessity 12.29 An easement of necessity will not arise unless the easement is essential for the use of the alleged dominant land, mere inconvenience will not be sufficient. Union Lighterage Co v London Graving Dock Co Intended Easements (Common intention) An easement of necessity will not arise where parties didn’t intend that one should exist. Adealon International Proprietary Ltd v London Borough of Merton [2007], easement of necessity only arise where it is related to the common intention of the parties at the date of the conveyance & acquisition. Implied Grants (both parties intended to create an easement but did not do so formally) 6
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Rule - a grant is construed against the grantor. Grants will therefore be implied in favour of the grantee. Rule in Wheeldon v Burrows (1879), if the rights were continuous & apparent over the servient tenement prior to the grant of the dominant tenement, then easements may be implied. Implied easement will arise if the following 4 conditions are satisfied:
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