Ferns Cottage Land Law Issue Essay Example | Topics and Well Written Essays - 2500 words

Ferns Cottage Land Law Issue - Essay Example The owner of the land in question is known as the dominant tenement of the land, and the person benefiting from another land, in this case, Adelaide, is known as the servient tenement (Law & Martin, 2009). The main subject of review in Adelaide’s situation has to do with easements and the ability to use these easements. An easement, according to the dictionary of law, is defined as a right of the owner to benefit from the other land (Burdick, 4). From a servant's point of view, easements are the rights that one person has over someone else’s land (Thompson, 47). The Law of Property Act of 1925 outlines the four characteristics that define what an easement is. Documents relating to this act state that there must be a dominant and servient tenement (not possessed and occupied by one person), the easement must be for the benefit of the dominant tenement, the tenements must be owned or occupied by two different persons, and the easements have to be competent in developing t he subject-matter of a grant (Legal easements, 187). These four criterions in the definition of an easement were outlined in the case of Re Ellenborough Park. The judge ruled in this case that the residents on the property could take pleasure in an easement because fulfilling all four characteristics gave them the right over the easement. In Adelaide’s situation, the easements, or the privileges that have been enjoyed by her, include the route to the highway, the shed she used to park her car, and the light that will be blocked from Adelaide’s windows (if the new owner builds a building overlooking her cottage (Burdick, 4)). Adelaide’s chances of winning the rights to these easements will be based on the evidence she has supporting the privileges that she has over the landowner’s field. Adelaide’s has the highest possibility of winning the easement over the short-cut route on the field. There are two ways that an easement can be obtained. An easeme nt can either be given by an expressed or implied grant, or by prescription (Legal easements, 187). Adelaide’s most substantial argument would be to prove that she is entitled to these easements by prescription, defined by the courts as an easement obtained by showing a continual use of land over a long period of time (Dictionary of Law). According to The Handbook of the law of real property, easements by prescription can be granted if they are used for 20 years or more, set by the English Prescription Act passed in 1832 (Burdick, 411). In Adelaide’s case, she has a good chance of winning the right to the route across her field by prescription. The continuous use of this path gives her permission for this easement. Adelaide can prove continuous use by showing the well-worn ruts on the road that has developed over time by the act of her driving on it and as a result of this occurrence being on a regular basis. Adelaide has strong evidence to win this easement because it was known to the dominant owner that she had been using the path for a reasonable manner (to get to the freeway). This complies with the rights outlined for obtaining an easement by prescription (Burdick, 414). Also, this easement is visible, also another characteristic of an easement by prescription (Burdick, 413).