NAME: FAITH JEROTICH
REG NO: 1047862
UNIT NAME:LAW OF PROPERTY IN LAND
UNIT CODE: CLS 205
Firstly ,we have to look at the meaning of easements.
An easement is a right annexed to land to utilize other land of different ownership in a particular
manner or to prevent the owner of other land from utilizing his land in a particular manner.
Regency villas ltd vs diamond resorts and another,UKSC (2018) 57 at (2) lord Briggs
. Gives rights over a neighbouring land
. cannot be an owner of an easement without being an owner to the land with which it is attached.
. Negative or positive. Utilise the land over another forest specific purpose or negative restricts for
utilizing for a special way
Steps of establishing whether an easement exists.
a) Rates being sought this means it must be shown to be capable of being an easement
b) must be shown how the easement has been acquired.
The legal framework of creation of easements in Kenya.
Legal easements originally created by the parties involved themselves by an express act. To make this
happen,a deed is essential.
An easement can be acquired through the following ways;
1. Express grant
This is a situation where the grantor expressly confers the rate to the grantee in prescribed form which
must specify the nature of the interest, duration, and other conditions limitations.
it can be in two ways.
By deed- this is usually through sale of part of the property section 62 of the land property act of 1925
states that every conveyance of land is deemed to include all easements rights and advantages relevant
to the land unless contrary intention in the land.
Section 62 of the land property act of 1925 states that every conveyance of land is deemed to include all
easements rights and advantages relevant to the land unless contrary intention in the land. Land with
benefit must be in separate occupation from land which is in burden easements can be expressly granted
in two situations;
a) Where there are two plots of landing ownership or one person and an apple seller one of the
plots, the seller grants an easement over the retained land.
b) where there are two separate owners of the two plots and one grants and easements over the
other.
2. Creation by implied grants
This is an easement that arises when a land owner conveys a landlocked parcel of land to another. In
common law, it is presumed that, the grantee has rights to pass over the retained property if such
passage is necessary to reach the granted landlocked property. For implied grants to come to
function it must include;
a) Necessity
where the dominant land is locked in without an easement because one has not been expressly
implied.
b) Common intention
An easement is implied where it is necessary to use the land for the purpose which both parties
intended. With this,the court must:
1. Find that the partied,at the time of the sale or lease of land shared an intention that
the land should be used for a particular purpose.
2. Easement is needed to give effect for the intended purpose.
c) In Wheeldon versus burrows 1879
Thesigner LJ said * on the grants by the owner of a tenement of part of the tenement as it is then used
and enjoyed, they will last to the grantee all those continous and apparent easements ( by which of
course I mean quasi easements) or, in other words, all those easements which are necessary to the
reasonable enjoyment of the property granted, and which have been and are at the time of the grant
used by the owners of the integrity for the benefit of the parts granted.
Requirements;
1. Rights must be continuous, and apparent seen on inspection, neither transitory nor intermittent
2. Rights must be necessary to reasonable enjoyment of property granted I.e would the rates
contribute to the enjoyment of property for purpose for which it was transferred? Not as strict
as in easements or of strict necessity
3. Used as a quasi is meant by the seller for benefits of the parts of land being sold at the time of
the sale takes place.
3.By prescription
Under the limitation of actions act 20 years of continuous use of another land grants and easements to
the user. They use must have been uninterrupted.
Easements by prescription are created by a trespasser a person without an ownership interest in the
property and without the permission of the property owner.
Legal easements may be presumed to have been granted if somebody can show long and continuous
use of the right.
This is called prescription- obtaining an easement not due to express or implied creation, but because of
the DT owner has exercised a particularly right for such a long time, the law presumes the ST owner
must have granted an easements in the past.
In order to show that the ST owner is qualified to the use of the right by the DT owner the following
must be shown.
1. User in fee simple
2. Continuous use by the DT owner of at least 20 years as of right
3. Use must be without force
4. use must be without secrecy i.e exercised openly and without concealments. Union lighterage
cooperative versus London graving dock cooperative 1902
5. The use must be without permission. i.e the landowner must not have given express consent.
Mills versus silver 1991
Having satisfied all of the above requirements the alleged DT seeking to obtain an easement by
prescription must then show they have acquired their easements by one of the following methods of
prescription;
a) Common law_ obsolete
b) Doctrine of lost modern grants which is eviction.
. where use has been made continuously for 20 years too is assumed on the fiction that the land owner
has entered into a deal expressly granting the easement, but that deed has been lost.
.it can be any 20 year. (Tehidy minerals versus Norman 1971 )compares to prescription act of 1832
c) prescription acts of 1832
.Short period- section two of the partnership act 1832, 20 years continious an uninterrupted use. Section
4 of the partnership act 1832 immediately before the claim to easements ( next before some suit or
action). section four of the partnership act 1832 ,any obstruction to exercising the right should be
ignored unless the claimant allows it to continue for one year after becoming aware of it. He has to make
his claim within the first year of the interruption. can be defeated by showing that it was not exercised as
of right.
.Long period -Section two of the partnership acts 1832, 40 years continues uninterrupted use. Section 4
of the partnership act 1832 immediately before the claim to easement.. section four of the partnership
updating 30 to any obstruction to exercising the right to be Ignored unless the claimants allowed it to
continue for one year after becoming aware of it infeasible unless some written permission can be
shown.
4. Creation by statutes
An easement may be granted by an act of parliament to facilitate the discharge of a statutory
obligation.
statutory easements are typically created by specific legislation that grants certain rates or
restrictions over property. This is means are created for the purpose of public interests egg utility or
road easements.
a) the land act of 2012. This legislation provides for various easements which
include rates of access to drainage and utility service. Section one or two of
land act specifically addresses servitudes which can be established by statute
or written agreements.
b) the physical planning act of 1996. This law empowers physical planners to
designate an established easements for public purposes such as road reserves
footpaths and sewer lines. It sets out the procedure for acquiring and
recording such easements.
c) the Kenya Water Act of 2016.it provides for the creation of easements for
water supply infrastructure egg pipelines, reservoirs, and water mains.
Types of easements.
Appurtenant Easement: This type of easement benefits a particular property and is attached to
the land itself. It involves two parcels of land, known as the dominant estate (the property
benefiting from the easement) and the servient estate (the property burdened by the
easement). For example, a right-of-way easement allowing access to a landlocked property.
Easement in Gross: Unlike an appurtenant easement, an easement in gross does not benefit a
specific property. Instead, it benefits an individual or entity. For example, a utility company may
have an easement in gross to access and maintain utility lines on a property.
Express Easement: This type of easement is created by a written agreement between the parties
involved. The terms and conditions of the easement are typically outlined in a legal document,
such as a deed or contract.
Implied Easement: An implied easement is not explicitly stated in a written agreement but is
inferred by the actions or circumstances of the parties involved. It may arise when there is a
preexisting use of one property that is reasonably necessary for the use and enjoyment of
another property.
Prescriptive Easement: A prescriptive easement is acquired through continuous and
uninterrupted use of another person’s property for a specific period of time, typically prescribed
by law. The use must be open, notorious, hostile, and exclusive.
Easement by Necessity: This type of easement is created when a property owner is landlocked
and requires access to their property through another person’s land. It is typically granted when
there is no other reasonable means of access available.
Conservation Easement: A conservation easement is voluntarily granted by a property owner to
a government agency or nonprofit organization to protect and preserve the natural, scenic, or
historic features of the land. It restricts certain uses and development rights on the property.
Recognised types of easements.
To use right of way, borman vs Griffith (1930)
To storage, wright vs macadam (1949)
To storage to hang signed for advertising business, Moody vs steggles (1879)
To park cars, Atwood vs bovis homes limited (2001)
To drainage Atwood vs bovis homes limited (2001)
To receive air through a different channel, Wong vs Beaumont properties (1965)
To the support of building from land or other buildings, Bradburn vs Lindsay (1983)
Characteristics of an easement.
1. There must be a dominance and servient tenement.
There can be easement properly so-called only if there be both the servants and dominant
tenements. and easements must be connected with the dominant tenement. Also an easement
can only exist if it is annexed to a piece of land. Once the easements are validly created, the
benefits will run with the dominant tenements and be of benefits to hisuccessive owners of
dominant tenements, burden will run to successive tenement owners subject to registration and
requirements were necessary.
The need for both a dominant and servient tournaments was restated and confirmed in London
and Blenheim estate limited versus Ladbroke retail parks limited of 1993.
2.Easements must accommodate the dominant tenement.
This requires that the right accommodates and serves the dominant tenement and is reasonably
necessary for the better enjoyment of that tenement.
This also means that it is a must announce the ordinary enjoyment of land and not sparely for
personal benefit of the land.
proximity between the two tournaments is needed this can be seen in the case of Bailey versus
Stephens of 1862
Regency villas title limited versue diamond resorts Europe limited of 2018. recognition of a new
species of easements of pure recreational rights over land, if they accommodate the adjacent
land they could constitute an easements.
Another case law to support this is that of hill vs tupper
Hill v Tupper [1863]
An incorporated canal company by deed granted to the plaintiff the sole and exclusive right or
liberty of putting or using pleasure boats for hire on their canal. Held that the granted did not
create such an estate or interest in the plaintiff as to enable him to maintain an action in his own
name against a person who distributed his right by putting and using pleasure boats for hire on
the canal.
Facts
Plaintiff was leased a building beside the Basingstoke Canal and along with the building was
leased sole and exclusive right or liberty to put or use boats for the purposes of pleasure on the
canal and the same for hire. The defendant who owned an inn on the adjoining canal wanted
to use boats and rent boats to his guests for the same purposes. The plaintiff claimed that the
defendants use of the canal was disturbing his enjoyment and possession of the right and liberty
he had to the canal and that this caused him to lose profit.
3.The servants and dominance honours must be different
This is because one cannot have an easement over his land. It has been observed that in order to obtain
an easement over land, one must not be the possessor of it. If then you are, you cannot have the land
itself and also an easement over it. Quasi easements it is where there are two plots of land owned by
the same person who uses 1 plots of land to get the other.
4.Easements should be capable of forming the subject matter of the grant.
This is divided into a five way criteria.
a) There must be a capable grantor and grantee.
.The servient owner must be able to grant an easement that is if the person creating the rights does not
have a legal estate in land then it cannot create a legal easements over it.
. A fluctuating body of people cannot be a capable grantee. E g the inhabitants and occupiers for the
time being of long Ashton village same applies to a company without power to acquire an easement.
b) The rate must be sufficiently definite or certain.
Chaffe versus Kingsley (2000) a claim to a right of way failed because the deed that purported to grant
the right was not specific enough as to the area of land that is affected
specific well defined- access to light or air through different apertures in a building that is in Harris
versus de pinna of 1886
Right to TV reception too broad and uncertain hunter versus Canary worth of 1997
c) Right must not entitle dominant tenements owner to make excessive use of the servient
tenement.
There is no easements known to the law which gives an exclusive or unrestricted use of a piece of land.
His alleged is means inconsistent with the proprietorship or possession of the alleged servient owner?
Easements must not be inconsistent with the continued beneficial ownership of the servient land by the
servient proprietor. This was said by Lord scott ,and Moncrieff versus Jamieson.
A question of degree, the issue is relevant to cases involving easements for storage and car parking, the
storage or parking may amount to exclusive possession of a defined space by the dominant tenement.
Exclusive position is a hallmark of a lease eg an estate.
However, cases involving storage of confined spaces have recognized the rights claimed as easements
eg. In wright versus macadam of 1949 dominant tenements held to have acquired valid easements to
store coal in shade, even though it amounted to exclusive possession of that shed
Car parking- typical as car parking rates are valuable in modern society, are capable of forming the
subject matter of a grant.
Rights must not entitle the dominant tenements owner to make excessive use of the servient
tenement, numerous cases from which it is difficult to form or apply a single clear test or rationale,
including the following wright versus macadam of 1949 and Copeland versus greenhalf of 1952.
REFERENCES
Land law property act
Partnership act
https://www.studocu.com/en-gb/n/15916111?sid=01689186431
