Khamis Faraji Abdalla Land Law Course Code: LW 214 Zanzibar University DATE: 15/12/215

KHAMIS FARAJI ABDALLA
LAND LAW
COURSE CODE: LW 214
ZANZIBAR UNIVERSITY
DATE: 15/12/215
EASEMENTS
Easement:
• is the right of the land belong to another person.
• Easement in law, a privileged of advantage without profit that
the owner of a parcel of land may have in the lands of another.
• Easement is the right to use the real property of another
without possessing it.
• Among the various forms of easement are the right of access,
the right to maintain a line of telephone pole, right of light and
air and drainage
• The someone will enjoy rights that they are entitled to over
that land
Continue..
• Easement are helpful for providing pathways across two or more pieces
of property.
• It is considered as a right in itself at common law and is still treated as a
type of property in most jurisdiction.
• The right of easement holder vary substantially among jurisdiction.
Historically the common law courts would enforce only four types of
easements
I. The right of way (easement of way)
II. Easement of support
III. Easement of light and air
IV. Rights pertaining to artificial waterways.
- Modern courts recognize more varieties of easements, but these
original categories still form the foundation of easement law.
Continue
• Easement is a non possessory right of use or
entry onto the land of another person.
• The holder of the easement is entitled to use a
portion of someone else’s land without
having any ownership interest.
Easement definition in Zanzibar
• Easement defined as a right attached to a
parcel of land which allows the proprietor of
the parcel either to use the land of another in
a particular manner or to restrict its use to a
particular extent, but does not include a
profit;
• The Registered Land Act sec. 2
Easement in Tanzania
• Shown under section 143 of the Land Act
No4/1999
• Nature of easement Sec 144
• Terminology under Sec 145
Essentials of an Easement
• In the case of Re Ellenborough Park, (1956) 3 Ch

131, owners of houses near the park had been
granted the right to use it as a leisure garden but
during WW II it had been taken over by
compensation. By statute, individual owners were
entitled to compensation if they had been deprived
of a legal right and the only possible right was an
easement. They succeeded in their action that the
right to enjoy the park could amount to an
easement.
In that case the following were outlined as the
essentials of an easement:-
(a) dominant and servant tenement,

(b) the easement must accommodate the dominant tenement
i.e. it must be connected with its enjoyment and for its benefit,
(c) the owners of the dominant and servient tenements must
be different persons,
(d) the right claimed must be capable of forming the subject
matter of the grant.
• The park was the servant tenement and the houses the
dominant tenement
The characteristics of easement
a. There must be a dominant land and a servient
tenement
- The right must relate two separate plots of land
1. The dominate tenement is a plot of land whose
owner enjoys the right constituted as an
easement
2. The servient tenement is a plot of land over
which the easement is exercised or the land
burdened any easement.
b. The easement must accommodated the
dominant tenement
• The right must be for the benefit of the land
and not merely for the benefit of the person in
his personal capacity.
• The right can be said to be attached to land
then it is assumed that it is for its benefit.
c. The dominate and servient tenements must be owned or occupied by different person.
• This is means that, the dominant and servient

land must be either owned or occupied by
different persons.
• It has long been accepted that you can not
have an easement over your own land. It may
be possible to have an quasi- easemenet but
that is not binding until it becomes a full
easement.
d. The easement must be capable of forming
the subject matter of a grant
• There are several different aspects to this category as:
- There must be capable grantor and grantee, that is
grantor must be legally capable of making grant
- The right it self must be sufficiently definite, that is
must be clear to be granted and the grantor has the
exact nature of the rights.
- The right must be in the nature of an easement,
recognized as easement or very similar to such
category and should be a justification before the court.
Creation of Easement
• Easement can be granted in the number of
different ways:
a. By statutes
b. Express grant
c. Implied grant
d. Reservation
e. Prescription
a. By statute
• Easement can be created with the articulation of the
statute concerned to cure requirement of land belong
to other person.
• In Zanzibar easement explained in The Registered
Land Act No 10/1990, section 93 (1)
• The proprietor of land or of lease may, by instrument
in the prescribed form, grant an easement over his
land or the land comprised in his lease, to the
proprietor or lessee of other land for the benefit of
that other land.
b. Express grant
• This can be either by deed or by will with expression
words which gives an easement to the dominant
tenement.
c. Implied grant, sometimes the grant of an easement
will be implied or simply inferred in favour of a
purchaser of land.
• Where there is a no way to find an easement the
court create an easement if is willing to find a
easement because without it the land cannot be
enjoyed.
d. By reservation
• The owner of the land sell part of it and retain
the rest, expressly reserving an easement the
land retained is dominant while the one who is
sold a servient.
e. By Prescription, if a right is exercised over a

long period of time then it is possible to claim
that the use becomes a legal easement even
without an express grant from the land owner.
Extinguishment of Easement
• There are number of ways in which easement
will come to an end, the following are ways of
termination:
a. By statutory
b. Unity of ownership
c. Release
d. Abandonment
e. Court order
a. By statutory
• The right to use the land of another (easement) may be
terminated by the provisions of the statute which prohibit the use
of the land concerned. This can be decided that there is no longer
existence of an easement.
b. Unity of ownership, if the dominant and servient land is owned

by one person any easement over the servient land will lease
c. Release, the owner of the dominant tenement can release his
rights over the servient tenement. The release should be carried
out by deed.
The dominant tenement owner can put an end to an easement in
his or her favour by filing a release of it in the land title office.
d. Abandonment
• The right to use land of another may be terminated
once the users of the land adopt to waive
(relinquish) the right to use the that right.
• Once the right has been acquired as a legal
easement, failure to make use of the right will not
cause the dominant land to lose the right. However,
where there has been no use over 20 years then
abandonment can be presumed unless there was no
occasion to use the right.
• Let discuss the cases of:
Swan v Sinclair [1924] 1 ch 254
• The landowner had not used a right of way for
38 years. He assented to building works which
would have prevented him permanently from
exercising the right of way over his neighbor's
land.
• It was held that held that the easement had
been abandonment.
Benn v Hardineji (1992) 66 P& CR 246
• Non use for 175 years was not enough to indicate an
intention to abandon an easement as there had been no
occasion to use the right of way involved because the
owner had an alternative means to access to his property.
e. Court order, the owner of the servient tenement cannot
terminate an easement unilaterally, he or she may be able
to have the court remove the easement under since the
court has the power to terminate an easement if the court
thinks that the persons who are owners of the dominant
tenement have agreed to it being cancelled.
Public Rights and Communal Rights of Way
(i) Public right of way

A public right is a right exercisable by anyone
whether he owns land or not merely by virtue of
being a member of the public.
Public rights which closely resemble easements

are public right of way and the land over which
they exist are called the highway.
This shown under section 151 of the Land Act
Types of Public rights
• Public rights of way are of two types,
i. Way leave
ii. Communal right of way.
(1) Way leave, is the public right of way created for the benefit of
the Government, local authority, public authority or any corporate
body to enable such authority or organization to carry out its
functions.
(ii) Communal right of way, this is a right created for the benefit of
the public generally. It entitles the public to pass and re-pass along
the right of way undertake recreation of the kind permitted in the
designated area.
The advantages of Easement
• For land owner
- The owner retains ownership of the land and use
it for any purpose not inconsistence with the
easement
- The value of property may not be significantly
affected by the granting of a easement
- The owner can be assured that any subsequent
owner will have to respect the easement which
has been granted.
Disadvantages of Easement
• A property encumbered by easement may be
reduced in value. Potential purchaser may be
unfamiliar with and therefore nervous about
easements. Potential purchaser may want the land
for some purpose incompatible with the easement.
• The requirement that an easement benefit the
dominant tenement may be a problem where the
purpose of the easement is to preserve or improve
the servient tenement.
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KHAMIS FARAJI ABDALLA

COURSE CODE: LW 214

• In the case of Re Ellenborough Park, (1956) 3 Ch

(a) dominant and servant tenement,

• This is means that, the dominant and servient

e. By Prescription, if a right is exercised over a

b. Unity of ownership, if the dominant and servient land is owned

(i) Public right of way

Public rights which closely resemble easements

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