Under the contract law easement refer to a situation in which one individual gives another party right to own his property. The asset can either be owned by an individual or by a group of individual or a company as well. Usually the owner of the asset must grant a right of ownership to the party purchasing the property. Under the contract the parties enter into a contract in which they make some conditions. There are various agreements on which the parties can make to each other. These include; a non inclusive easement agreement on which the participating parties do not give out their names. On the other hand, the individual taking part in the contract is clearly defined (VerSteeg, 2002). Thus in brief, easement can be defined as a real property on which the party, said to be owner has separate legal ownership from the asset. Examples of the property include building, land and equipment.
Under the easement agreement there certain things that the owner of the land must clearly define before the contract can be legally abiding the parties. The land owner must assure the transferee that the later will have a quiet enjoyment of the asset and thus no neighbors will ever interfere with the asset. Thus the predecessor will enjoy the property without any litigation taken on him. In addition to that, the owner must clearly define the extent at which the predecessor will use the property. If it’s a land, boundaries and locations must be shown to avoid future conflict. To ensure no further breach of contract the parties must have negotiations made clearly defined and especially if the matters involved land.
There are two categories of easement under which this case law can exactly fit. An easement in gross is a temporal form of easement on which the rights of ownership of the property may not be transferred to the owner and the property on death. The rights are retained by specific group o individuals. The property is confiscated upon death. In addition to that, we have appurtenant easement under which upon the death of the property owner, the rights of ownership are permanently retained in the property and its owner. However, a condition stipulating that the property must be owned by separate legal persons must be fulfilled(Wash, 2003). An example of the appurtenant easement in our case law lie where the predecessor of the land has aright to close the ditch used by the neighbors as during the sale of the property the owner stated that the neighbor poses no right of ownership on the asset. From this analysis we can conclude that our case law is appurtenant easement. More over the easement can be classified further as affirmative or negative easement (Beale, 2002). On affirmative easement, the law grants the owner of the land to do anything on the land , for instance in our case the new land owner has aright to extend the buildings on the land even to where we have ditch used by the neighbors. On the other hand, the land owner is prohibited from using the land on any manner.
Under the contract law, an easement can be created in several ways .An express easement agreement exists where e the parties involved enters into a written agreement over the sale and purchase of the property. The advantage of this easement is that it can act as a clear future reference in future in case of a conflict (Hazardm, 2004). On the side of an easement under implication, an agreement is entered into where there is no written agreement over the matter. In most cases oral agreements are made by the participating parties.
There are various elements which must be fulfilled by the parties in for easement contract law to exist. These elements include common ownership of the property at a given time period, where in case land we have the owner initially owning the land and the building but later, passes it to the predecessor (Willmott, Christensen, Butler, & Dixon, 2009). Secondly, we have the assets followed by a severance incase of breach of a contract where the sufferer claims for damages. Thirdly, use of the property occur before the severance and even after the sufferer is compensated in case of a breach. Fourthly, a notice is given incase of one of the party in case of withdrawing from the agreement. The notice must in written agreement and I must be at least three months'(Gilmore, 2002). Lastly, it’s necessary and beneficial for all the parties to participate fully on the agreement. No party in the contract has a right to deceive the other. They should clearly disclose the relevant matters in the easement agreement. (Bayles, 1992)
From the case law given, Susan, who is owner of the property makes several agreement to Terry who intends to possess the properties. She informs Terry that no easement benefits the other landowners yet eventually Terry come across several neighbors on the ditches. This breaches the agreement on the easement (Bergkamp, 2001). She continues to deceive Terry that the house was constructed in 1660 on which he comes later to notice that the house was constructed on 1860.She knew well that Terry is a keen amateur historian and he highly values the date of the house. All these tricks are aimed to convince Terry to buy the house. In addition to that, the garden estate purchased and Susan claimed will yield a profit eventually yield a loss of 163:10000.From the information given to Terry, he has a right to sue Susan over the matters. He is entitled to have several remedies against (Susan, 1992).
Several rights are identified to exist an easement agreement where the buyer who Terry should be accorded. First, he has a view easement right where he has a right to stop any person involved in interfering with his land. The neighbors benefiting from the drains at the corner of the estate should be unstopped from using the assets. He has aright to seek an injunction from the court to have them evacuated from the areas. He is permitted to block the drain by constructing a building on the estate. Secondly he is having a drive away easement right on which, he can close down a given walkway to a given estate (Buckley, 2000). Sometimes the houses may be so close that the neighbor may share a common path but if one of them finds it a threat to his estate he can willingly close the path. However, easement may be necessary to allow some of the houses parts like roofs to be constructed. Thirdly, Terry has a right of conservation easement, where as a land trustee he is empowered to limit development of the environment where it’s believed that land pollution is a threat. Terry, if believes that the neighbors are misusing the drains at the corner of the estate, has a right to call for an injunction from the court of law and have them stopped. Fourthly, Terry has a historic preservation easement right where he has right to ensure he is given correct historic information about the building in order to ensure he preserves his building (Wilmot, 2009).
Fifthly, he also has a right on easement of support, where the owner of the property and who sold to him should adequately support him in all matters pertaining the estate assets including evacuation of the neighbors. He also has aright to be supported on extending the buildings. In addition to that Terry also has a right pertaining to all artificial drains in his land hence he has aright to stop the neighbors from consuming the drains by constructing a building (Atiyah, 1979).
On the hand Terry has a right to communication easement. This is where Terry has a right to use wireless communication services such as cable lines, towers as well as additional communication services (Barnett, 2003). This type of easement that Terry is entitled to is a private easement. The rights that are given under this type of easement by the owner of the property are usually for a particular use of various forms of communication (Buckley,1983). Another easement right that Terry is entitled to is the egress or ingress easement. This is where Terry has the right to entering or exiting the property in the course of or over the area of easement.
In our case Terry can take the following legal remedies against Susan for breaching the contract. One of the actions the Terry can take against Susan is t take a civil suit against her. He can file this suit in a court of law. This remedy is taken to compel Susan to compensate Terry for all the damages that he has suffered due to failure on part of Susan to honor the contract (McKendrick, 2005). The judge will determine whether Susan indeed failed honor the contract and if she is found guilty she will be compelled y the court to pay Terry for all the damages he has suffered.
On the other hand Terry can decide to terminate the contract. In order to terminate the contract he should show the following factors. He should first show release which is the agreement by the two parties to terminate the contract through the grantor as well as the grantee. In this case it would be advisable for Terry to terminate the agreement since the other party to the covenant failed to honor the terms of the contract (Law Commission, 1999).
Terry can seek for restitution where he seeks for restoration. This will compel Susan to restore all the benefits that she receives at the expense of Terry ( Fruehwald ,2008). This remedy is aimed at ensuring that one of the parties to the contract does not benefit from the contract at the expense of the other. Terry has good grounds to seek restitution because Susan has benefited from this easement contract at the expense of Terry. In conclusion Terry stands good chances of getting paid for damages that arises from the failure of Susan to honor the contract.