Monday, October 10, 2005
Late nights with Easements
Easement - A proprietary interest/right over another person's land. In order for a right to become an easement, it must fulfill the 4 requirements in Re Ellenborough Park and does not fall within the 3 negating factors.
The 4 requirements:
i) there is Dominant Tenement and Servient Tenement;
ii) there is diversity of ownership/occupation;
iii) right must accommodate dominant tenement; and
iv) must be capable of forming the subject matter of a grant.
The 3 negating factors:
i) servient tenement owner must not incur any expenditure;
ii) the right must not be negating in nature; and
iii) must not be exclusive/joint user.
Once this is fulfilled, we must consider the methods of creation or acquisition of an easement. An easement can be obtained through express (grant/reservation), implied grant by necessity, common intention, Wheeldon v Burrows and under S62 Law of Property Act 1925, implied reservation or prescription (> 20 yrs long user). Conditions through prescription: User in fee simple, user as of right - nec vi (without force), nec clam (without secrecy) and nec precario (without permission), and user must be continuous; established with prescription at common law, lost modern grant and the Prescription Act 1832.
System of registration: We have to identify whether it is a legal or equitable easement on a registered or unregistered land. A legal easement must be either freehold or leasehold land and obtained through statute, deed (unregistered land), registered disposition (registered land) or prescription. An equitable easement must be either in writing (S2 LPA 1989) or through proprietary estoppel. For unregistered land, the benefit and burden for legal easements will automatically bind on subsequent DT and ST owner; however burden for equitable easements must be registered as Class D (iii) Land Charge Act 1972 (exception: squatter/donee). For registered land, benefit will automatically bind on subsequent DT owner for legal and equitable easements; however burden will be classified as "overriding interest" under S70(1)(a) Land Registration Act 1925 for legal easements; as for equitable easements, burden must be registered as "minor interest" under Land Registration Act 1925 (exception: squatter/donee)
Physically ~ Stuck in front of the computer. Tired eyes. Stiff muscles.
Mentally ~ Drained. Cannot sleep.
Talk ~ Sigh.. my test is on Wednesday. I managed to memorise all of that above. Except some parts regarding the Acts and sections. I'll study more tomorrow.
Eating out ~ Food source is scarce these days with the 9 Emperor festival and bulan ramadhan. Everyone's puasa-ing, chinese and indians observe vegetarian diets, malays fasting. It's so difficult to find a food stall for lunch. I'm sick and tired of vegetarian food that I am forced (no lah.. just willing for health's sake) to eat everyday. Nevermind, it's going to be over soon.
Movie ~ Final Fantasy VII: Advent Children
PS2 Game ~ Shadow Hearts: Covenant
The 4 requirements:
i) there is Dominant Tenement and Servient Tenement;
ii) there is diversity of ownership/occupation;
iii) right must accommodate dominant tenement; and
iv) must be capable of forming the subject matter of a grant.
The 3 negating factors:
i) servient tenement owner must not incur any expenditure;
ii) the right must not be negating in nature; and
iii) must not be exclusive/joint user.
Once this is fulfilled, we must consider the methods of creation or acquisition of an easement. An easement can be obtained through express (grant/reservation), implied grant by necessity, common intention, Wheeldon v Burrows and under S62 Law of Property Act 1925, implied reservation or prescription (> 20 yrs long user). Conditions through prescription: User in fee simple, user as of right - nec vi (without force), nec clam (without secrecy) and nec precario (without permission), and user must be continuous; established with prescription at common law, lost modern grant and the Prescription Act 1832.
System of registration: We have to identify whether it is a legal or equitable easement on a registered or unregistered land. A legal easement must be either freehold or leasehold land and obtained through statute, deed (unregistered land), registered disposition (registered land) or prescription. An equitable easement must be either in writing (S2 LPA 1989) or through proprietary estoppel. For unregistered land, the benefit and burden for legal easements will automatically bind on subsequent DT and ST owner; however burden for equitable easements must be registered as Class D (iii) Land Charge Act 1972 (exception: squatter/donee). For registered land, benefit will automatically bind on subsequent DT owner for legal and equitable easements; however burden will be classified as "overriding interest" under S70(1)(a) Land Registration Act 1925 for legal easements; as for equitable easements, burden must be registered as "minor interest" under Land Registration Act 1925 (exception: squatter/donee)
Physically ~ Stuck in front of the computer. Tired eyes. Stiff muscles.
Mentally ~ Drained. Cannot sleep.
Talk ~ Sigh.. my test is on Wednesday. I managed to memorise all of that above. Except some parts regarding the Acts and sections. I'll study more tomorrow.
Eating out ~ Food source is scarce these days with the 9 Emperor festival and bulan ramadhan. Everyone's puasa-ing, chinese and indians observe vegetarian diets, malays fasting. It's so difficult to find a food stall for lunch. I'm sick and tired of vegetarian food that I am forced (no lah.. just willing for health's sake) to eat everyday. Nevermind, it's going to be over soon.
Movie ~ Final Fantasy VII: Advent Children
PS2 Game ~ Shadow Hearts: Covenant
