PROBLEM SOLVING: EASEMENTS

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1 PROBLEM SOLVING: EASEMENTS Step 1 Write heading Parties/Interests Party name is the registered proprietor of the property (hereafter the property ). Party name is claiming an easement over the neighbouring property (hereafter the neighbours land ). An easement is a property interest that confers a limited right over land in the possession of another. To claim an easement it must be established and it must not be extinguished. Step 2 Write heading Category of easement Write: The interest would be categorised as an easement of way / service easement o Easement of way = allows access to the dominant land by foot or by vehicle depending upon the terms or basis upon which the easement is created; and o Service easements = generally which includes drainage and sewerage easements and also easement for services such as telephone and electricity Write: It is a positive / negative easement that is would be a. Refer to types of easements o Positive easements = gives the owner of the dominant tenement the right to do something on neighbour s land i.e. walking over it or running a drainage o Negative easements = prevents the occupier of the servient tenement from doing certain things. e.g. easement of light Types: Rights to light and air: Commonwealth v Registrar of Titles (Vic) (1918) 24 CLR 348 Rights of support a building on land: Dalton v Angus (1881) 6 App CAS 740 o Not a right of support of one s own land from one s neighbour s land Party walls: Richards v Rose (1853) 9 Exch 218 Fencing Easements: Crow v Wood [1971] 1 QB however the obligation to fence, akin to an easement is now largely covered by legislation: Fences Act 1968 (Vic) Right to park cars: London & Blenbeim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31 Right to enter a neighbour s land to use a toilet located there: Hedley v Roberts [1977] VR 282 Right to enter on land for the purposes of maintaining an external wall and fixtures on the wall: Beck v Auerbach (1986) 6 NSWLR 454 Right of access to air to a defined aperture: Cable v Bryant [1908] Right to cause a nuisance on the servient tenement, for instance by noise: Re State Electricity Commission of Victoria and Joshua s Contract [1940] VLR 121 Right to cause a nuisance on the servient tenement, for instance deposit noxious waste on it: Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 1

2 Right to use an airfield for testing aeroplanes: Dowtry Bolton Paul Ltd v Wolverhampton Corporation (No 2) [1976] Ch 13 Right to bring goods through the doorway of an adjacent shop: Wilcox v Richardson (1997) 43 NSWLR 4 Holder of the dominant tenement has ancillary rights to ensure enjoyment of the easement, such as the right to repair pathways and pipes: Jones v Pritchard [1908] 1 Ch 630 The category of easement is not closed: Commonwealth v Registrar of Titles (Vic) (1918) 24 CLR 348 NON types of easements: an easement is not a right to take any part of its natural produce of the land or its soil Rights to a view or prospect: Aldred s Case (1610) Co Rep 57b Right to hit cricket balls onto neighbouring property: Miller v Jackson [1977] QB 966 Rights amount to possession of the servient tenement Right to uninterrupted radio or television reception is not capable of being easement: Hunter v Canary Wharf Ltd [1997] AC 655 Right to privacy: Browne v Flower 1 Ch 219 Right to protection from the weather: Phipps v Pears [1965] 1 QB 76 it was held a covenant would be more appropriate Step 2 Write heading Establishing Easements (as per Re Ellenborough Park [1956] Ch 131; [1955] 3 WLR 892) Note: A right cannot be an easement if it amounts to possession of any part of the servient tenement. A right to possession must be an estate or native title 1. Must be a dominant and servient tenement a. Servient gives the right and dominant has the benefit b. Servient is the way that grants the land 2. Servient tenement must accommodate (benefit) dominant a. connected with the normal enjoyment of the dominant tenement this is primarily one of fact i. Clos Farming Estates v Easton (2002) 11 BPR (not accommodating = easement for vineyard) which entitled the plaintiff to grow and harvest grapes the claim failed because it did not enhance the use and enjoyment of the plaintiff s land in any meaningful way it did not accommodate the land it could have been obtained by means of a licence or lease ii. Moody v Stogges (1829) 12 Ch D 261 (accommodating business use) the P affixed a sign for his pub on the D s wall the D argued that the easement did not relate to the tenement 2

3 this argument failed as the occupant only uses the house for the business thus it is more or less connected with the mode in which the occupant of the house uses Note: Land benefitted by an easement is called the dominant tenement. The benefit to the dominant tenement is called accommodation 3. Dominant & servient tenement owned and occupied by different people a. The easement will be extinguished if a person purchases two parcels of land that contain an easement b. will not be extinguished if a landlord lease the land to the tenant despite owning the two parcels of land c. If a person owns two parcels of land and sells it the owner must revive the easement it will not automatically be revived 4. Rights capable of forming subject matter of grant. Easements cannot be passed by possession, because they do not physically exist they can only pass through grants a. the right must be a "right of utility and benefit", and not merely for recreation or amusement Re Ellenborough Park [1956] 1 Ch 131 b. Too vague or wide: if expressed too vague then not easement i. Re Ellenborough & Clos states that if too broad not easement c. Cannot amount to grant exclusive possession or use? does it interfere with the servient tenement s land? Re Ellenborough i. If the rights amounts to joint occupation then it is not a right that forms the subject of a grants ii. the right cannot have the effect of using the whole of servient tenement to the exclusion of the servient tenement s owner 1. allows some exclusive possession of parts of the servient property: Ryan v Sutherland [2011] 16 BPR 30,101 ASK, whether the rights of the easement holder, that gives some exclusive possession impede the reasonable use of the servient as a whole? iii. As part of this discussion look at the types of easements that have been listed above and if they do not fit in them then reason by analogy that it is similar to one of them 5. Conclusion On this basis, an easement is / is not established. If it is not established then only a personal right can be created i.e. right in personam ONCE ESTABLISHED STATE WHERE IT ORIGINATED Step 3 Write heading Creation of easements 3

4 1) By statute a. Typically through a subdivision as per Subdivision Act 1988 (Vic) 2) By express grant (create) / reservation (reserve) Legal easements a. This can be done by registration of an instrument as per s 65 TLA b. As part of a transaction or separately by itself s 72 TLA allows registrar to make any recording of an easement over or upon by any deed other written document i.e. contract of deed Equitable easements c. Specifically enforceable contract Walsh v Lonsdale (1882) 21 Ch D 9 equity will recognise even though s 126 or a contract that is specifically formed d. Estoppel the representation would have to be more than permission it would have to be right Waltons Stores (Interstate) Ltd v Maher HCA (1988) 164 CLR 387 3) By prescription: the claimant must show that he or she exercised the use as though entitled to do so as an incident of ownership of the dominant land otherwise there is no basis in presuming a lost grant: Delahey v Permanent Trustee a. Used as of right : i. the right to have been exercised nec vi (without force), ii. nec clam (without secrecy); and iii. nec precario (without permission); and iv. but with the servient tenement s acquiescence (must have known) before a title by prescription can arise - Dalton v Angus & Co (1881) 6 App Case 740 it was argued that the right of support had been used secretly but rejected because the owner had the means of ascertaining that his land was being used to support the building on the dominant tenement b. Each party must hold land in fee simple NOT leasehold interest c. Enjoyed or used continuously for 20 years then a presumption arises that there was a grant by the owner of the servient tenement to the owner of the dominant tenement - it is an irrebuttable presumption by proof that was no express grant that ever existed, the only exception would be if the servient tenement did not have capacity to grant i.e. child or only had life estate (time continues even though proprietors change but would need to give evidence from previous owners) d. Cannot be an easement of light by prescription - PLA ss 195 & 196 Note: after twenty years you can register an easement by prescription as per TLA s 72 need to get an order from court 4

5 Step 4 Write heading Extinguishment of easement 1. Express release: a. Not registered: a declaration by the person who had the benefit of it declaring they no longer want it (it is advisable to include a nominal consideration so that it can be a specifically enforceable contract) b. Registered: in the approved form to obtain a removal from register - s 73 TLA 2. Dominant & servient tenement becoming owned and occupied by the same person 3. Abandoned: the owner of the dominant tenement formed the intention to never at anytime there after assert the right himself or attempt to transmit it a. the mere fact that an easement has not been used is not conclusive evidence Treweeke v 36 Wolseley Road Pty Ltd ( ) 128 CLR 274 b. However, if non-use is for a very long duration (20-30 years+) it may infer an intention: Treweeke v 36 Wolseley Road Pty Ltd ( ) 128 CLR 274 c. Note: every time the owner of the dominant tenement changes then the 30 year timeframe is extinguished deriving from indefeasibility: Riley v Penttila [1974] VR 547 at d. Note: where it is proved to the Registrar that an easement has not been used or enjoyed for a period no less than thirty years shall constitute sufficient evidence that easement has been abandoned s 73(3) TLA BUT according to Shelmerdine & Anor v Ringen Pty Ltd & Anor [1993] 1 VR 315 it does not compel the Registrar to remove if there is any evidence of non-abandonment despite thirty years of nonuse 4. Statutory extinguishment (not expected to know this in the subject) 5. Court orders (not expected to know this in the subject) 6. Alteration to dominant tenement so extensive as to constitute excessive use (not expected to know this in the subject) Step Consider Other Easement (if an easement is not established and/or extinguished) A. Statutory easements a. Water Act 1989 (Vic) s 287Q - If a transferee acquires any right in the nature of an easement, or purporting to be an easement, as a result of an allocation under this Part, that right must be taken to be an easement even though there is no land vested in the transferee which is benefited or capable of being benefited by that right. B. Profits à prendre 5

6 a. A right to enter another person s land and take from it part of its soil, minerals, natural produce or wild animals b. May be an exclusive or a shared right c. Can exist in gross or be appurtenant d. May be granted in perpetuity or for a limited time C. Restrictive covenants a. Dominant and servient tenements b. Restrictive covenant on servient tenement must benefit dominant tenement c. Pieces of land must be owned by different people d. Must be a negative restriction on owner s use of land e. Binds successors in title (see PLA s 78) but only with notice of the covenant f. Wider availability than negative easements g. Can only be created by express agreement h. Can be recorded on register (TLA s 88) Write heading Conclusion Easements run with the land. This means that if land is burdened by an easement then it is transferred and the obligation imposed by the easement continues to be enforceable and binds each new owner for so long as their ownership of the land endures. On this basis an easement has been established and extinguished / not extinguished. 6

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