Law of Easements

This is problem question structure relates to the law surrounding Easements. This area of law is arguably the most convoluted topic found in the Land Law module, but I have managed to create a step-by-step guide on how to deal with Easement problem questions.

Charlie was the registered owner of Harrow Farm, which consisted of a farmhouse set in a large field and a small cottage, Rose Mews, which sits in a walled garden alongside the farmhouse. The front door of the cottage could be accessed via a drive across the large field although there was an alternative means of access via a narrow path that ran from the back door of the cottage to the main road alongside the farmhouse....

The article deals with the issue of land and forest common rights (servitutes praediorum) of the inhabitants of Leżajsk. The functioning and the difficult process of abolishing the rights of the municipality’s to collect wood from manor’s forests in the 19th century, reflected a general tendency in Galicia to appearance numerous disputes and conflicts during of the reform abolishing common rights. The Leżajsk example is one of the few cases in which the municipality until 1865 could collect construction timber from forests for the purpose of maintaining urban infrastructure - passenger and freight ferries, roads, pavements, canals, bridges and crossings, and signposts. The investigation conducted by the local commission of common rights conducted in the years 1865-1869 finally resulted in the abolition of rights through their redemption with compensation. After a few years of difficult negotiations and appeals to the Interior Ministry in Vienna, the magistrate received compensation from Alfred Potocki in the amount of 1977 guldens. The article, based on extremely valuable sources not used so far, focuses on unexplored subject, which, in the broader context of socio-economic changes, can shed a whole new light on the perception of modernization processes in Galicia.

The article deals with an issue not studied so far, in the subject literature mentioned only from a general or fragmentary point of view. On the example of the Kolbuszowa estate the article presents the forms of easement rights which originated from the era of the Polish-Lithuanian Commonwealth and were based on commonly accepted norms or unilateral acts. After 1772 the Austrians decided to keep the norms, which was most often accented in the socalled urbarial descriptions from 1789. Prior to economic reforms in Galicia easement rights were a source of numerous social antagonisms, as shown on the example of the conflict between Jerzy Tyszkiewicz and the Kolbuszowa townsmen, described in the article. The material content of the article mentions the issue of conflicts upon easement rights after the 1848 reforms. Lack of an immediate legal regulation of the easement rights for a long time as well as the process of their regulation and purchase led to mass disputes, particularly between the village and the manor. Complicated relations between the villagers and the Ruckis and Tyszkiewiczs as well as the disputes among the municipalities, presented in the article, are a by-the-book example of the real problem concerning the whole Galicia, which in some cases took decades to solve.

"The case of Batchelor v Marlow may remain the binding authority for English law. But its force is irrevocably weakened by Moncrieff v Jamieson. Moreover, the core test of Batchelor is flawed and ill-defined. A judge in the lower court has an easy way to avoid being bound by the case, for example by referring to some hypothetical possibility of building over or under the parking space. Consequently the ouster principle is no longer an obstacle in the recognition of parking rights as easement in English law.

However, there are many unanswered questions with regard to various types of parking easements, from shared parking rights, to exclusive right to park at designated space, as well as the interaction between right of way and right of parking.

Meanwhile, the Law Commission's proposal to abolish the ouster principle regardless of context is unnecessary and risky. If followed, this will damage many well established institutions of English property law beyond easement, such as leases and adverse possession. It may be better for the legislator to take no action as things stand. Instead the court should take the lead and a bolder approach without the fear of the ouster principle, in laying down some useful guidance for dealing with the practical difficulties of parking easement."

"  This paper analyzes the transmission easement institution based both on Polish civil law and legal solutions prepared on the basis of Polish administrative law. In the first case the analyzed solutions contained in the Civil Code (together with the prepared amendments to the regulations on transmission easement). In the second case there was discussed the analysis of selected transmission easement regulations, which are contained in the bill on transmission corridors.
          The paper presents an analysis of the following issues: (1) the institution of transmission easement, (2) the constraints on transmission easement, (3) the term "transmission facilities" – both on the Civil Code and the bill on transmission corridors, (5) transmission corridors and effects of setting in their area transmission easement. However, the issue of compensation related to the establishment of easements on the basis of civil law and administrative law has not been further discussed here.
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When a residential or roofed business premise is leased, the legislator intervenes in the contract between the parties with many mandatory provisions. The alleged purpose of this intervention by the legislator is to protect the weak side of the lease contract. However, it is debated whether the legislator went too far in this protection and whether the tenant of a roofed business premise should be protected with the same provisions as the tenant of a residential premise. In line with these discussions, some of the articles of the Law of Obligations, which regulate the lease contract, have been postponed for tenants who are merchants or legal entities. Instead of such artificial interventions, landlords may be advised to grant easements. As a rule, easement rights are acquired by registration following the easement contract to be concluded officially in the title deed. It is possible to establish the right of easement for a certain period of time which cannot be prolonged without the consensus of the parties. There is no obstacle for the determination of the price of the easement in foreign currency. Similarly, monthly or yearly payments and an increase in these payments can be determined by the parties freelly. Given the partially deferred provisions of the Code of Obligations relating to the lease contract, flexibility in the matters listed above may result in the preference of easement rights. However, it should also be questioned whether this preference would constitute a circumvention of the law.

The law on the prescriptive acquisition of easements and profits, as it evolved in England and Wales and was inherited by other common law jurisdictions, has long been considered unsatisfactory. ‘Clouds and darkness [had] settled down over the whole subject’ even before the ‘fitting addition to the chaos’ represented by the Prescription Act 1832. It is not surprising, therefore, that reform is under consideration in a number of jurisdictions. As part of a wide-ranging reform of land law in the Republic of Ireland, the law of prescription was radically recast by Part 8 of the Land and Conveyancing Law Reform Act 2009 (the LCLRA). The three existing forms of prescription—common law prescription, prescription under the doctrine of lost modern grant, and statutory prescription under the Prescription Act 1832—were abolished and replaced by a new form of statutory prescription. The period for the acquisition by prescription was reduced to 12 years, creating what one commentator has described as ‘The most liberal system of prescription ever proposed’. The new regime was due to come into effect after a three-year transition period but, before this period had elapsed, the scheme was modified by the Civil Law (Miscellaneous Provisions) Act 2011. Unfortunately, even after the 2011 amendments, there appear to be significant difficulties with the new Irish scheme. This chapter analyses the problems that have arisen in Ireland in relation to the reform of the law of prescription and considers the possible lessons for reformers in other jurisdictions, giving special attention to comparisons with the proposals made by the Law Commission for England and Wales in 2011.

"Utility easement - intertemporal problems" / The question of intertemporal effects of enactment of utility easement in the Polish law (amending act coming into force on 3 August 2008), must have been posed due to the peculiar origins of this property right. Its statutory design has been based to the predominant extent upon the previous judicial practice - that developed (through quite innovative interpretation of the existing provisions) this new sub-type of easement. Therefore, temporal effects of enactment of this regulation should be considered in the adequately specific way. Adopting solutions typical for newly-established property rights might be questionable in this case. The very close link between purely judicial construction and its "codification" requires appropriate  reaction in the transitive sphere (without separating both - in fact almost identical - rights in the temporal sphere). The article provides also a metohod of calculation of prescription period, which commenced, yet not expired, before 3 August 2008. The conclusions drew in text has been confirmed by the resolution of the Supreme Court of 22 May 2013 (III CZP 18/13).
The article published in "Monitor Prawniczy", vol. 1/2014.

Utility easement - that is, nothing new / The text addesses the question of intertemporal effects of enactment of utility easement in the Polish law (amending act coming into force on 3 August 2008), must have been posed due to the peculiar origins of this property right. Its statutory design has been based to the predominant extent upon the previous judicial practice - that developed (through quite innovative interpretation of the existing provisions) this new sub-type of easement. Therefore, temporal effects of enactment of this regulation should be considered in the adequately specific way. Adopting solutions typical for newly-established property rights might be questionable in this case. The very close link between purely judicial construction and its "codification" requires appropriate  reaction in the transitive sphere (without separating both - in fact almost identical - rights in the temporal sphere). The conclusions drew in text has been confirmed by the resolution of the Supreme Court of 22 May 2013 (III CZP 18/13).
The article published in "Rzeczpospolita" daily of 5 September 2013.
On the same problem see also M. Grochowski,  "Utility easement - intertemporal problems", published in "Monitor Prawniczy", vol. 1/2014.