EASEMENTARY RIGHT IS NOT A PERPETUAL RIGHT

TABLE OF CONTENTS
CHAPTER 1:
1. ABSTRACT
2. KEYWORDS
3. INTRODUCTION
4. BACKGROUND OF THE STUDY
5. LITERATURE REVIEW
6. AIM AND OBJECTIVE OF STUDY
7. SCOPE AND LIMITATION OF THE STUDY
8. HYPOTHESIS
9. RESEARCH QUESTION
10. RESEARCH METHODOLOGY
11. SCHEME OF STUDY (CHAPTERIZATION)
CHAPTER 2: LAW OF EASEMENTS
1. ORIGIN AND DEVELOPMENT OF EASEMENTARY RIGHT
(i) DURING OLD AND MEDIVEL HISTORY OF INDIA
(ii) ROMAN LAW
(iii) ENGLISH LAW
(iv) INDIAN LAW
2. EASEMENTARY RIGHT IS A RIGHT-IN-REM
3. SALIENT FEATURES OF THE ACT
4. DEFINITIONS
(i) BY JURISITS
(ii) UNDER THE ACT
5. ESSENTIAL QUALITIES OF EASEMENTS
6. CHARACTERISTICS OF EASEMENTS
7. CLASSIFICATIONS OF EASEMENTS
(i) POSTITIVE & NEGATIVE EASEMENTS
(ii) APPARENT & NON – APPARENT EASEMENTS
(iii) CONTINUOUS AND DIS-CONTINUOUS EASEMENTS
8. PROFIT – E – PRENDRE
MODE OF ENJOYMENT OF EASEMENT
EXTENT OF EASEMENT
9. COMPARISON WITH OTHER COUNTIRES
10. LEGAL FRAMEWORK IN PROTECTION OF EASEMENTS
CHAPTER: 3 (ACQUISITION OF EASEMENTS)
1. WHO MAY IMPOSE EASEMENTS (CREATION OF EASEMENTS)
2. ACQUISITION OF EASEMENTS (WITH ILLUSTRATIVE CASES)
(i) EASEMENT BY NECESSITY
(ii) QUASI EASEMENTS
(iii) BY PRESCRIPTION
(iv) BY LOST MODERN GRANT
3. DISPOSITION, DISTURBANCE OF EASMENTS
CHAPTER: 4 (EXTINCTION OF EASEMENTS)
1. BY CASE OF PRECEDING IMPOSITION OF EASEMENT
2. BY RELEASE
3. REVOCATION
4. ON EXPIRATION OF LIMITED PERIOD
5. ON TERMINATION OF NECESSITY
6. ON BECOMING USELESS
7. BY PERMANENT CHANGE IN DOMINANT HERITAGE
8. ON PERMANENT ALTERATION OF SERVIENT HERITAGE BY SUPERIOR
FORCE
9. ON DESTRUCTION OF EITHER HERITAGE
10. BY UNITY OF OWNERSHIP
11. BY NON-ENJOYMENT
12. OF ACCESSORY RIGHTS
13. (SUSPENSION, REVIVAL OF EASEMENTENTS)
CHAPTER 5:
1. COMPARATIVE STUDY WITH UK/USA/FRANCE/CANADA
2. ISSUES & CHALLENGES
3. SUMMARY OF FINDINGS
4. CONCLUSION
5. SUGGESSION
6. BIBLIOGRAPHY
7. WEBLIOGRAPHY
BOOKS REFERRED:
Law of easements & Licenses by [Link]
The Law Book Company (P) Ltd., 12th Edition

Law of easements & Licenses by [Link]’s

Asia law House 3rd Edition

Law of easements & Licenses by [Link]

Universal Law Publishing Co. 13th Edition 2010

Law of Easements & Licenses by [Link]

Eastern Law House 3rd Edition 2003

Law of Easements and Licenses by Kher

Ashoka Law House, 2010 Edition

Land Law by Kevin Gray & Susan Feancis Gray

Core Text Series, 6th Edition 2009

Property Law handbook (2009-2010)

Robert Abbey Mark Richards (London)
Oxfort University Press
Legal Analysis of Easement Rights and
Permissive Licences in Property
Disputes: A Case Study
There are three issues that arise from this situation. The first is whether Raphael can prevent
Alba from parking near the manor house. The second is whether Raphael can stop Alba from
using the driveway. The third is whether Raphael can prevent Jane from crossing
Ravenswood land to access the gate to the right of the manor house.

Each of the three issues relate to the creation of easement rights; in case any of the three
rights is not an easement, it may be a permissive licence. It is an easement that will bind the
new purchaser as this is a proprietary right; permissive licence will not do so. Two tests have
to be satisfied for each of the three situations for these rights to be easements. The first is
whether the right claimed is capable of being an easement and the second is whether the right
is acquired in a way that can create an easement. This can be assessed on the basis of Re
Ellenborough Park judgment, which requires that for there to be an easement, there should be
a dominant and servient tenement; the right must be in favour of the dominant tenement; both
should be owned by different people; and the right must be capable of being the subject
matter of a grant. The right can be created as an easement expressly as in the case of right to
use driveway in the case of Alba; or impliedly, which can be the issue with regard to use of
parking and crossing over from Ravenwood; or it can be by prescription (use for more than
20 years). In this case, the last is not applicable because no right has been used prior to 2005,
which means that prescription is not met with.

With regard to the first issue, that is related to the parking near Manor house, the transfer
document registered at the Land Registry does not mention parking but may still be
considered to be an easement. The right to park the car in a specific piece of land is capable
of being deemed as an easement right as per the House of Lords judgment in Moncrieff v
Jamieson and Hair v Gillman. The easement for parking should however not deprive the
owner of the burdened land of the benefits of ownership altogether or make the ownership of
the land 'illusory' as was held in Batchelor v Marlow. As per the judgment in Moncrieff if the
burdened owner retains possession of the land and also has reasonable control of its land,
then the easement can be upheld. In Kettel v Bloomfold Ltd, the Batchelor test was applied to
consider whether the easement to park had been created in favour of the tenant. The court
held that as the owner retained possession as well as reasonable control of the land, the
easement can be upheld. Therefore, in this present situation, it can be argued by Alba that she
has the easement right to parking in the designated space. The question is whether the fact
that it has not been registered impacts the right of Alba. The Land Registration Act 2002,
Schedule 3 lists easements as one of the unregistered interests that can override registered
dispositions. Therefore, even though not registered, the interest of Alba in the parking space
can override the interest of Raphael as the registered owner of the Manor House.

The second issue relates to the granting to Alba the right to use the Ravenswood’s driveway
connecting the Lodge to the main road. This is a right of way that was granted to Alba by the
previous owner of the Manor House. The law is provided by the Land Registration Act 2002,
Schedule 3. Easements are overriding interests under Schedule 3. The easement holder has to
establish that the purchaser had knowledge of the easement on the date of the transfer, or
could have known about it after careful inspection of the property, or that the easement holder
has exercised the right at least once in the year preceding the purchase by the new owner
(Land Registration Act 2002, Schedule 3, Para 3). As the right to use the driveway was
mentioned in the transfer document by Michael to Alba, this right was within the notice of
the new purchaser. Moreover, Raphael can easily ascertain that Alba was using the driveway
when he purchased the Manor House. Alba’s right to use the driveway is an easement right
that will bind Raphael under the Land Registration Act 2002, Schedule 3 as an overriding
interest.

The third issue relates to Jane’s crossing Ravenswood land to access the gate to the right of
the manor house. In this situation, as the easement is not created expressly, it could have been
created impliedly, but for that Jane would have to establish necessity (Adealon International
Corp Proprietary Ltd v Merton LBC) and common intention. This does not appear to be the
case as the right was merely to use the land as a shortcut and not necessity. The law related to
this can be found in the difference between proprietary and personal rights. Proprietary rights
can bind the future purchaser of the land, but personal rights are enforceable only between the
grantor and the grantee (National Provincial Bank v Ainsworth; Scott v Southern Pacific
Mortgages). In Choudhary v Yavuz, the court has held that personal rights cannot bind the
future purchaser of the land. In that case, the court had to consider whether a personal activity
of using the stairway led to the creation of a personal right or a proprietary interest in the
property by the user. The court held that such interest was personal in nature and not
proprietary. Even if there is permission to use the land for the purpose of some personal
interest, this would not lead to the creation of a proprietary interest (Ashburn Anstalt v WJ
Arnold & Co). The facts of this case indicate that Michael sold the field to the north of the
manor house to Jane and allowed Jane to cross Ravenswood land to access a gate to the right
of the manor house for a shortcut to the shops. This is not a proprietary interest created in
favour of Jane and merely is a personal interest allowed by Michael to make her journey to
the shops shorter.