Site Assembly and Development - Dissertation Example

? Site Assembly and Development: Easements in the UK Word Count: 2,250 (9 pages) I. Introduction Have you walked past a pond, wanting to fish, not sure who owned it? How many times have you walked across a sidewalk wondering if anyone owned it? Here easements will be discussed, which are pieces of shared property. An easement, in English law, is basically defined as being a type of right that one has with regard to land that is owned by someone else. The definition of who holds an easement, what can be done with an easement, and that the law regarding easement and how an easement should be governed should all be analyzed and possibly re-worked. II. The Definition of An Easement Basically, someone who has an easement is someone who can tread on someone else’s property. That person is called the servient. “The holder of an easement has the right to use a tract of land, called the servient tenement…” but has very little rights otherwise.1 Easements come in an inexhaustible amount of forms, and, for example, adjacent properties might come into play, such as was the case in Bailey v Stevens (1862). Sometimes there are implied easements, as in the case of Wheeldon v Burrows. Whatever the case, it is quite possible that the definition of who owns an easement should actually be defined better. For example, instead of having four requirements for the definition of an easement to be met—basically stating who owns an easement—an easement should be clearly defined in a one-sentence statement or paragraph. This would thus put to rest all the haggling behind what an easement consists of and that of which it does not consist. Easements present a problem, not only in English law, but all over the world. People disagree all the time as to what constitutes an easement, and who has a right to share what. As such, the definition of what an easement is, and why it begs to be defined, are partially societal problems. If English society were more communal rather than individual in nature, most likely there would not be such a problem with the idea of having to share space. But, since like the West, the UK has been “enlightened” in terms of having to have at least 10 metres of space per person even in office space, it so follows that it would probably be only natural for someone from England demanding justice if a neighbour came to fish in his or her pond, swim in a backyard pool, or use the lavatory at one’s whim. As such, it can be very difficult to actually define an easement, especially if the person using the easement does not want to formally admit that he or she is using the other person’s property illegally. Also, the dominant may not want to admit that there is an easement between both the dominant and the servient, as the dominant may feel that, legitimating that relationship might therefore give the servient some type of rights or ownership to his or her property—which it does, but that is almost entirely beside the point. The person who holds the easement doesn’t exactly own the property. It’s more like, they are borrowing it or using it for a certain time and then won’t be there anymore. Usage of an easement is, for the majority, not continuous. Thus, these facts should be taken into account when one is considering either making an easement formal or doing something in order to make the process of acquiring an easement possible. In all circumstances, paperwork should always be filled out so there is no misunderstanding between the dominant and the servient. This is essential for the relationship. III. What Can Be Done with an Easement Although an easement itself is defined by four strict necessities by law, what can be done with an easement should definitely be clarified. It has been said that “…an easement is extinguished if the dominant and servient tenements come into the same ownership…”2 That may be true, but unless it was expressly written into the law in such a like manner, one might never know that that had been the case. Even so, there are such things as quasi-easements—whereby both the dominant and the servient own the easement. Along with the transfer of property through sale, that is covered by the Law Property Act of 1925, Sec. 62. Easements are thus governed in such a manner. One of the ideas as to what can be done with easements would be to extend the possibilities what could be done with one. For example, if a pond was used for fishing, perhaps the pond might have some other uses too that might be helpful for multiple people, not just one. Of course, this is the idea of making an easement communal property. For example, consider a pathway that crosses a person’s property through a corn field in order to get to the next town. Could that pathway not be considered communal space because everybody needs to walk on that path to get to town? Public crossings are definitely a form of easement upon which much has been written. But, if an easement is not formally designated, what then? The best answer to this problem is to combat it with common sense. If a walkway could be considered communal, it probably is—especially if it were indeed the case that one could only use the path in order to get to town and it were the only way. However, what happens when the law is on the side of the person owning the property and there is no recourse for the person using the easement? It turns out that there is indeed a way that the user can pursue an easement. Obviously, the easement would probably have to be pursued via the court system, however, that would not be difficult nor impossible, necessarily. But, one would probably have to have the capital in order to make such an easement formal if it were not previously established as so beforehand. As such, it makes sense to know what laws have already been employed—as well as those which need to be employed, combined in tandem with what makes logical sense. For example, it doesn’t make sense to pursue an easement via court or the legal system if one has an agreement already with the owner of the property that it’s “okay” to fish in his pond so long as one throws all the fish back, et cetera, or something to that nature. Obviously, it is this mutual trust of a verbal agreement that sometimes trumps the letter of the law. But, nothing is certain in life; it pays to get everything in writing. IV. The Law Regarding Easement and How It Should Be Governed It has long been said that there should be reform with regard to how easements are governed, as well as the laws that govern them. “[T]he UK experience [dictates that] this is an interesting and challenging time for easement-holding organizations: Many easements created in the 1970s and 1980s are now reaching the second and third generations of subsequent owners, many of whom are not as committed to preservation as the original donors, and many of whom want to put their own imprint on their property.”3 Most times these days, people who rent property or have some type of control over it definitely want to have the legal power that comes along with owning property. Not only that, but they want property to be move-in ready. A lot of people today don’t like to renovate their own properties; they already prefer to have had that done beforehand for them by the owner. That being said, other people doing work on an owner’s property which they use on a regular basis could be a dicey problem. On the one hand, the person may have a formal easement agreement with the owner of the property. However, if the person using the property—such as a shared WC—were to totally renovate the bathroom without the owner’s permission, it being a “shared” bathroom—that could be grounds for suing the holder of the easement in court. As such, easements and the law regarding them can be very tricky to navigate. “The Law Commission has suggested the possibility that as regards easements the law in England and Wales should follow the Scottish example…[and] would apply to easements created in the future…”4 This might be an interesting problem. Although it is controversial anywhere to use someone else’s property without actually possessing it, this becomes an especially keen problem with regard to easements. Naturally, people who own property are very jealous in terms of wanting to have their own property to themselves; it’s only human. However, when someone encroaches upon another person’s legal boundaries—no matter how enlightened the dominant—the servient always has the potential to face problems, due to the territorial nature of people. It only makes sense, then, that legally, there must be clear grounds where easements are concerned, for all parties involved—even if the easement is an informal agreement between two neighbours that one can fish in his pond with or without stipulations. Whatever the agreement, it must be something that can be sealed with a handshake if a verbal agreement, and agreed on paper with a signature if the dominant requires it from the servient. In any case, paperwork is only there to protect both parties from any kind of liability. Easements are definitely difficult problems to tackle, but worthwhile. That having been said, it is in both the owner and the servient’s best interests to know what they want, respectively, and that each party can then have boundaries which are to be followed. This really helps everyone with the idea that the property is to be shared, and it encourages a sense of community between the dominant(s) and servient(s). It is hoped that, in the future, easements will be able to be more readily available without having to finagle through a long and difficult legal explanation about what it constitutes. The law should definitely be made simpler to explain these concepts well to the general public. Through clear extrapolation of the law this is possible. V. Conclusion Discussing easements can be a complicated task. However, it is not to be taken on lightly. Since the definition of an easement, how an easement can be used, and the legal ramifications of the easement are all part and parcel of the legalities involved with this particular idea of ‘shared property,’ it is hoped that the law relating to easements can be eventually reformed. It won’t be easy, but it is possible. In this site and assembly development project, it has been concluded that an easement is governable, but certain laws must be followed with regards to how it is used between two or more parties. To be able to get a deduction under s 8-1 ITAA 97 a taxpayer needs to satisfy the positive limbs and not be denied by the negative limbs. It is clear that he has necessarily incurred the three expenses however there may be an argument that the expenses incurred to get new clients are in the nature of preliminary expenses. This argument is unlikely to be sustainable because he is currently carrying on a business and it would appear that he has been in business for quite a while. The expenses related to his current clients would appear to be a normal or necessary expense to service his clients and as those expenses are unlikely to give rise to any sort of enduring benefit they will most likely be deductible. The expenses incurred to generate new clients may be viewed as expenses incurred to maintain rather than expand his income earning structure because most businesses undertake some amount of promotion/advertising to sustain their business. The actual expansion of the business as a result of the expenses was not significant and the expenses did not give the lessee any enforceable rights. The next question is to determine if the acquisition of the rights gives rise to the acquisition of a capital asset and thus be denied deductibility under the capital limb of s 8-1 ITAA 97. Generally once and for all payments are more likely to be capital and certainly the any lump sum for the easement in the amount of 50K Euros falls into that category. The fact that the purchase price may be spread out over a period may suggest that the expense has a revenue nature but the decision in the Sun Newspapers case still concluded that even if payments for rights are spread over a period of time they can still be considered to be capital if the underlying acquisition relates to expanding the business entity. In the present case the acquisition of the management right results in an expansion of the lessee’s income earning structure by 20 clients or almost 7%. While the actual size of the expansion is not immense it can still be argued that there has been an expansion of the income earning structure. The essence of the transaction was the acquisition of enforceable rights and in accordance with the rationale used by the court in the National Australia Bank case the acquisition of an enforceable right is most likely to give rise to a character of capital. It is hoped that the deal of an easement can be worked out by all parties involved, in this current site and assembly development project. BIBLIOGRAPHY J Law & EA Martin. A Dictionary of Law. UK: Oxford University Press, 2009. M McMordie & F Pannekoek. Heritage Covenants and Preservation. Canada: University of Calgary Press, 2004. C Rossini. English as a Legal Language. UK: Martinus Nijhoff Publishers, 1998. Level Crossings: A Joint Consultation Paper. U.K.: Stationery Office, 2010. Read More