What Is an Express Legal Easement

Easements can be confusing for Florida residents. On the one hand, an easement does not confer on the holder of an easement a right of ownership over the land he is authorized to use. On the other hand, however, it does not allow the actual landowner to prohibit the easement holder from entering the landowner`s property for a limited and specific purpose. In one of the previous articles from our servitude lawyers, we gave a general overview of easements and the different methods of creation. In this article, our Los Angeles Easement Advisor discusses the creation of an easement by express grant or reserve. ⇒ In Borman v. Griffith [1930], Maugham J. noted that a quasi-servitude does not need to be “continuous” for the doctrine to be applied in Wheeldon v. Burrows, but must be “apparent” in the sense of obvious/visible. A fourth category, fair servitudes resulting from the confiscation of property, is controversial.

Cases such as ER Ives Investments Ltd v. High and Crabb v. Arun District Council were proposed in support of their existence; However, some commentators prefer to analyze these cases in such a way that they lead to a right different from a legal servitude or servitude. This makes an important difference when it comes to retaining third-party buyers. [38] ⇒ But more than that, the court used this section to creatively involve new easements in a land transfer. An easement is an interest in real estate. Therefore, the creation or transfer of an easement must meet the requirements of a real property transfer instrument. This rule is called the Fraud Act. The first requirement – that there must be two different parcels of land – is at the heart of the definition of an easement. A right of way granted to a person is granted in his capacity as landowner; If a person who is not a landowner is granted a right of way, it is simply a licence. [5] It must then be shown that the right is linked in one way or another to the enjoyment of the dominant dwelling house.

To this end, it is important that the right benefits an individual in his or her capacity as a landowner and not just a personal right. For example, the court concluded that a right of way on a parcel of land in Northumberland to a property in Kent would not be the necessary advantage because the proximity of the two parcels would be too far away. [6] However, the Ellenborough Park case recognized that it was not necessary to make an easement on an adjacent parcel of land, although there must clearly be a reasonable connection in which the dominant dwelling house can be claimed. [7] While an easement may be created and transferred in writing or by an act other than an act, an explicit servitude is generally created by an act. The deed establishing the easement must contain the names of the grantor and the beneficiary (or other words sufficient to identify the beneficiary). The device must also include a description that adequately identifies the serviced dwelling house, either by reference to a registered card or to another registered document containing an appropriate description. In addition, the easement must also refer to the dominant dwelling house. ⇒The requirement that quasi-servitude be “continuous and obvious” has been reinterpreted in court. An explicit servitude is created by an act or will. Therefore, this must be done in writing. An explicit easement can also be created if the owner of a particular piece of land transfers the land to another, but stores or reserves an easement there.

This agreement is referred to as a “conditional easement”. In any case, an explicit servitude is an easement that is concluded affirmatively by documented legal means. ⇒ The law implicitly grants (or reserve) an easement on a transfer of land when the transferred (or retained) land is landlocked, i.e. there is no access to the land → the implied easement is a right of way over the retained (or transferred) land. All interested parties benefiting from the servitude must be parties to the act or consent to the release, including:[48] Easements are different from restrictive agreements, and the court will not allow the creation of an easement if the right is essentially a restrictive agreement. To prove the existence of a restrictive agreement, it must be proved that various criteria are met and that a restrictive agreement works only in equity and not under the common law, while an easement can work for both. [12] An instrument that imposes a negative obligation on another dwelling house is usually a restrictive contract, although there are exceptions – the right to light, which may be an easement, prevents the owner of the subordinate dwelling house from acting in contradiction with it. [13] Even if an easement is not explicitly created, it can be implicitly created […].