“Easements offer the right of one landowner to use the land of another in a prescribed fashion or, much less commonly, to restrict the use made of the burdened land. These incorporeal rights exist, therefore, to enhance the enjoyment of the dominant land at the expense of the servient land. The elemental feature is that an easement does not mark a deprivation of the servient owner’s rights, but rather entails a mere diminution of those rights. As Lord Shaw observed, ‘In substance the owner of the dominant tenement throughout admits that the property is in another, and the right being built up or asserted is the right over the property of that other’. As an easement is a third-party interest in the servient land, it is necessary to distinguish it from claims that are possessory in nature such as leasehold and freehold estates. This distinction is crucial as, ‘easements and possessory interests in land must be mutually exclusive’ …”
€ (Westlaw)
Michael Haley, ‘Parking rights and conceptual wrongs: the ouster principle revisited’ [2022] 1 Conveyancer and Property Lawyer 9-29.
First posted 2022-03-24 18:30:56
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