- Created by: CCGGreen
- Created on: 01-12-17 09:58
What are the main Characteristics of an easement which were laid down in the leading case of Re Ellenborough Park (1956) and whether this legislation needs updating?
Re Ellenborough Park sets out the main characteristics required for an easement (rather than a licence) in this case there was a number of neighbours who wanted to use the park but needed to establish an easement in order to use the pleasure ground for leisure purposes. Evershed MR determined the four criteria's for defining an easement.
These characteristics are; that there must be a dominant and servient tenement, the easement must 'accommodate' the dominant tenement, the dominant and servient must be owned or occupied by different persons and the easement must be capable of forming the subject matter of a grant. All these characteristics must be satisfied in order to establish a valid easement. As well as these characteristics there must be acquisition of an easement, this can be acquired through a grant, whether that be; an express, implied including necessity, common intention, Wheeldon v Burrows, statute and prescription.
The dominant and servient tenement meant the right must relate to two separate plots of land: The dominant tenement is the plot of land whose owner enjoys the right constituted as an easement. while the servient tenement is the plot of land over which the easement is exercised or the land burdened by the easement. The easement can't exist 'in gross' meaning that there must be land which benefits, it can't be a personal benefit. In the case of Alfred Beckett V Lyons there was a right claimed by inhabitants of a…