Easements. = A right belonging to land to use other land in a particular way, or to prevent some particular use of other land

Transcription

1 Easements = A right belnging t land t use ther land in a particular way, r t prevent sme particular use f ther land Issues If there is a valid easement If the easement has been validly created What remedies are available if there is a breach f easement Can the easement be remved Elements Under the General Law the essential characteristics f an easement are: Re Ellenbrugh Park 1. Dminant and Servient Land 2. Easement must accmmdate the Dminate land 3. Dminant and servient wners are different persns 4. The right must be capable f frming the subject matter f a grant 5. Easement must be cnsistent with servient wner s rights Established easement rights Right f way, access, light, water, air There is an bligatin nt t d anything t land which will withdraw supprt frm land r buildings n ther land: s179 PLA Cmmn law n prtectin fr buildings 1. Dminant and Servient Land Servient land is burdened by the easement (wner grants the easement) Dminant land benefits frm the easement Easement cannt exist in grss an easement belngs t land therefre there must be dminant land befre there is an easement; cannt have easement first and land secnd. Except fr certain public authrities n need fr dminant land: s89 LTA 2. Easement accmmdates the Dminant Land Must be a real and practical benefit t the land Must have Prximity f dminant and servient land Must be cnnected with enjyment f the land: Ellenbrugh Park (right t use garden in cmmn with thers enhances the value and enjyment f the huse n dminant land nt t wide & vague satisfied test fr easement) Persnal advantage will nt suffice 3. Tenement nt held by the same persn Easements may nw be registered even if the dminant wner wns r has an interest in the servient land: s86 LTA (allws develper t set up estates with easements) 4. Capable f frming the subject matter f a grant Must riginate in a grant (express r implied) must be sufficiently definite: Re Ellenbrugh Park (right t use garden in cmmn with thers nt t vague r merely recreatinal) Must be a right f utility and benefit, nt merely recreatin & amusement Must increase enjyment and value f residence Must nt be t wide and vague Uninterrupted sea views t vague Right t air t vague unless mre specific (eg t dry ut timber) 1

2 Right t passage f light t vague unless particular windw granted 5. Cnsistent with servient wner s rights Must nt amunt t exclusive use f servient land Must nt prevent servient wner frm dealing with land as an wner is entitled t: Re Ellenbrugh Park (right t use garden des nt give right t exclude wners frm wnership r pssessin satisfies test fr easement) Other issues [see cnstructin] Every subdivided part f dminant land will gain the benefit f an easement unless as a matter f cnstructin it benefits the dminant land in its riginal frm nly: Gallagher v Rainbw (path ut t rad landwners each held a narrw strip, cmmn easements ver the ther s ne wner subdivides as a matter f cnstructin, each subdivided prtin f land gains the benefit f the easements) Right f way may nly be used fr access t the dminant land, nt t access mre remte land: Westfield Management Ltd v Perpetual Trustee C Ltd (easement granting a right f acrss servient land t dminant land sught declaratin that culd use t access ther blcks which adjined the dminant land cannt use easement t gain access t mre remte land, even if wn land) impses a greater burden n the servient wner than they agreed t accept Effect Elements f easement satisfied requirements f registratin must be satisfied: s82 LTA Elements f easement nt satisfied pssibly categrised as Lease (gives exclusive pssessin) Prfit a prendre (right t take prduce frm anther s land) Licence (persnal in nature, created infrmally, can exist in grss withut DL) Restrictive cvenant (eg preventing building in ne area = maintaining breeze & light) cannt be registered Develpment set up t prtect sea views by restricting height: Ryan v Brain Cvenant nt t build t keep in an pen state: Tulk v Mxhay Prtect privacy by restricting the height f building: Nrtn v Kilduff Creatin f Easements GENERAL LAW Express Grant Operates at CL, equity and under the Trrens system Eg the full enjyment...in cmmn with the ther (purchasers) f the pleasure grund Ellenbrugh Park : Re Ellenbrugh Park Frmalities Must be in writing: s11 PLA registered: s181 LTA by instrument f easement: s82 LTA Plan f survey designating the easement must als be registered: s83 LTA Nt registered r nt in writing nly amunt t an equitable easement: s11(1)(a) PLA May still be enfrceable if Exceptin t indefeasibility: s185(3) 2

3 Persnal right: Australian Hi-Fi Publicatins v Gehl Trrens prir registered interest enfrceable against third party purchasers (s184 LTA) Implied Grant Where an wner f land sells part f it, an easement will be implied in favur f the purchaser if fr rights if (Wheeldn v Burrws (T sells empty part f land t P part retained cntaining wrkshp then sld t D D claimed right f light t windws in wrkshp n easement remains fr vendr D had n rights)) Cntinuus and apparent Apparent Feature f existence f right (path, track, mark, feature, etc) Cntinuus nly required that it is used when necessary, nt cnstantly Necessary fr the reasnable enjyment f the part sld; and At the time f the grant were used by past wner f the entire parcel fr the benefit f the part later sld. N crrespnding principle f implied reservatin in favur f a vendr (must expressly reserve in sale prbably with allwance in price therwise degradatin frm grant) althugh may arise thrugh easement by necessity Trrens nt registered nt enfrceable against 3 rd party purchaser : Aust Hi-Fi v Gehl (easement nt created by a methd apprpriate fr Trrens land) Easement ut f Necessity Nt a matter f cnvenience must be abslutely necessary if there is alternative access, even if incnvenient, difficult, expensive, an easement f necessity wuld fail. Where a lt is landlcked and there is n access: Nrth Sydney Printing Unless there is n intentin t access the land: Nrth Sydney Printing (subdivided and sld ff leaving himself with a landlcked lt intended t sell t cuncil fr extensin t car park did nt eventuate n intentin t access n easement f necessity) Trrens nt registered nt enfrceable against 3 rd party purchaser : s184 LTA Pryce v McGuiness recgnised as exceptin t indefeasibility, but nt gd law because incnsistent with Australian Hi-Fi, and befre Frazer v Walker [Easement by Prescriptin] Arises where (Dctrine f lst mdern grant) One landwner Exercises rights capable f being granted as easements against anther landwner Fr 20 years Openly Cntinuusly As f right (n permissin r payment) Trrens Easements by Prescriptin prbably cannt arise ver Trrens land: Dewhirst v Edwards (several wners driving acrss E s land t get t garages abut 20 years denied) In any case nt effective against 3 rd party purchasers : s184 LTA; Dewhirst v Edwards 20 years must accumulate befre the cmmencement f the PLA (1975): s198a(1) 3

4 N presumptin made f rights t light r air after 1907: s178 PLA STATUTE Land wner may apply t the supreme curt and seek the impsitin fr a statutry right ver the land f anther: s180 PLA easement, licence, r smething else: s180(2) Generally Limited circumstances Heavy nus n applicant t persuade curt t interfere with smene else s prperty rights Cnservative apprach Nt just landlcked land (als fr mre cnvenient access) Nt limited t easements Registered easement has lasting value Terms may include maintenance r peridic payments Test Reasnably necessary fr effective use in any reasnable manner the dminant land: s180(1) Reasnably necessary, nt abslutely necessary: Re Seafrth Land Sales (landlcked by mistake wned back blck, culd have accessed that way but very difficult because ne blck had huse and swimming pl (ccupied by tenants) & had trucks s difficult t get ver land easement granted) Lng perid f use evidences effective use in a reasnable manner: Nelsn v Calahrra Prperties (wners f shps granting mutual easements fr many years eventually discvered N was nt entitled demanded $24k cmpensatin each statutry right granted $12k cmpensatin awarded) Cnditins 1. Cnsistent with the public interest that dminant land be used in the manner prpsed: s180(3)(a) Need nt be in the public interest, just cnsistent with (nt cntrary t) it: Re Seafrth Land Sales. 2. Servient wner adequately cmpensated: s180(3)(b) Take int accunt hw the applicatin came abut: Seafrth (mistake, rather than deliberate missin etc) Cnsideratin must be given t persnal factrs as well as valuatin: Edward St (trying t get an easement ver residential prperties extensins garden ability t subdivide relevant) Evidence as t decrease in value f servient lt is relevant: Edward St Prperties (n evidence given applicatin denied) If same easement exists in favur f ther lts already nt much cmpensatin: Edward St Prperties N cmpensatin fr reductin in bargaining pwer due t legislatin measure is the lss f the servient wner, nt the gain f the dminant wner, due t the legislatin: Lang Parade v Pelus (2005) (statutry right fr cranes trespassing ver adjacent blcks in favur f develper respndents sught cmpensatin reflecting reduced cnstructin csts since they were able t trespass nt granted) 4

5 3. Servient wner refused right and this is unreasnable: s180(3)(c) Failure t reply; r Seeking an unreasnable amunt: Re Seafrth ($18K + 2 car parks sught easement granted at $8K) Disagreement n terms f cmpensatin will nt suffice: Re Seafrth Refusal n persnal grunds is nt necessarily unreasnable: Edward St (trying t get an easement ver residential prperties extensins garden ability t subdivide relevant) Pt 6 Div 4 SubdivB LTA Develper registering a plan f subdivisin will nt create an easement must register the plan f subdivisin and execute instruments f easement: Register a plan f subdivisin shwing nature and lcatin f prpsed easement; and Instrument f easement Cnstructin executed by registered wner f lt t be burdened, shwing nature f easement, terms, benefited lt and burdened lt Issues interference with an easement Authrisatin f acts f the dminant wner Entitlement f wners f subdivided lts t benefit f the easement Effect f Subdivisin Presumptin Every subdivided part f dminant land will gain the benefit f an easement unless as a matter f cnstructin it benefits the dminant land in its riginal frm nly: Gallagher v Rainbw (cmmn rad & right f way ver 4 blcks ne wner subdivides hlders f subdivided land entitled t easement) Must cnsider whether the increased use f the land n subdivisin exceeds the burden f the grant Wrding in grant f easement that supprts the presumptin: fr all purpses incidental t dmestic use n restrictin n intensity f use, number f c-wners r any part f the dminant land subdivisin Extended definitin f grantee includes transferees & transferees f subdivided parts Each riginal wner t bear ¼ f maintenance csts (= higher burden n grantrs than grantees) nt an bstacle Access t mre Remte Land Right f way may nly be used fr access t the dminant land, nt t access mre remte land: Westfield Management Ltd v Perpetual Trustee C Ltd (easement granting a right f acrss servient land t dminant land sught declaratin that culd use t access ther 5

6 blcks which adjined the dminant land cannt use easement t gain access t mre remte land) impses a greater burden n the servient wner than they agreed t accept t and frm dminant land fr all purpses cnstructin may change this presumptin: Westfield Management Ltd v Perpetual Trustee C Ltd Nt relevant that the parties cntemplated that parties wuld g frm the dminant land t anther prperty because f the easement cnstrued nly by what is n the register, nt by surrunding facts & circumstances: Westfield Management Ltd v Perpetual Trustee C Ltd Terminatin: s181 PLA (1)Where land is subject t an easement r t a restrictin arising under cvenant r therwise as t the user f the land, the curt may frm time t time, n the applicatin f any persn interested in the land, by rder mdify r whlly r partially extinguish the easement r restrictin upn being satisfied a. that because f change in the user f any land having the benefit f the easement r restrictin, r in the character f the neighburhd r ther circumstances f the case which the curt may deem material, the easement r restrictin ught t be deemed bslete; r b. that the cntinued existence f the easement r restrictin wuld impede sme reasnable user f the land subject t the easement r restrictin, r that the easement r restrictin, in impeding that user, either (i) des nt secure t persns entitled t the benefit f it any practical benefits f substantial value, utility, r advantage t them; r (ii) is cntrary t the public interest; and that mney will be an adequate cmpensatin fr the lss r disadvantage (if any) which any such persn will suffer frm the extinguishment r mdificatin; r c. that the persns f full age and capacity fr the time being r frm time t time entitled t the easement r t the benefit f the restrictin, whether in respect f estates in fee simple r any lesser estates r interests in the land t which the easement r the benefit f the restrictin is annexed, have agreed t the easement r restrictin being mdified r whlly r partially extinguished, r by their acts r missins may reasnably be cnsidered t have abandned the easement whlly r in part r waived the benefit f the restrictin whlly r in part; r d. that the prpsed mdificatin r extinguishment will nt substantially injure the persns entitled t the easement, r t the benefit f the restrictin. 6

7 Curt may mdify r extinguish an easement if (s181 PLA + s92 LTA (s181 applies t easements)) Dminant wners agreed; r Dminant wners abandned; r Easement nw bslete & extinguishment will nt substantially injure dminant wners; r All f the fllwing cntinued existence impedes sme reasnable user des nt give dminant wners any practical benefit f substantial value cntinuatin cntrary t public interest mney adequate cmpensatin extinguishment will nt substantially injure dminant wners. Agreement (CL & Statute) Owners may agree t terminate by registratin f the apprpriate dcuments: s 90 LTA If nt registered Curt may make an rder t terminate if satisfied that the parties have agreed t terminate: s181(1)(c) PLA Once registered, the curt rder will bind subsequent wners: s 92 LTA (cnfirms that s 181 PLA applies t registered land) Abandnment (CL & Statute) = dminant wner frms and demnstrates an intentin t never again use that easement (Q f fact) registratin f curt rder required t extinguish At cmmn law and under the Trrens System an E can be extinguished by abandnment: s 181(1)(c) The same requirements apply t bth sets f law: Treweeke v 36 Wlseley Rd (right f access t beach frm back blck were using blck next dr instead unusable at time granted: rck wall bamb plantatin afterwards: swimming pl built assisted in building chainwire fence next dr access blcked merely nt using n intentin t abandn) Curts take a cnservative apprach based n the inference that peple value prperty rights highly: Treweeke v 36 Wlseley Rd (path t beach unlikely t be abandned) Key is intentin: Treweeke v 36 Wlseley Rd (lack f use culd be explained because f alternative access) Nt abandned if: (Treweeke v 36 Wlseley Rd) Partially used Nt used because alternative access available Pleasant amenity unlikely t be abandned Nt cnclusive Lng delay: Treweeke v 36 Wlseley Rd (40 years) Assisting in r nt bjecting t inhibiting right, if attributable t sme ther reasn: Treweeke v 36 Wlseley Rd (helping t put up fence because smene had fallen) Right inhibited frm the start: Treweeke v 36 Wlseley Rd (unusable at time granted: rck wall bamb plantatin) Statute Curt will accept an applicatin fr its remval under s181 PLA(a) r (b). Grund 3 7

8 Easement nw bslete & extinguishment will nt substantially injure dminant wners: s 181(1) (a)&(d) (a) Easement Obslete Due t change in the character f the neighburhd r ther material circumstances : Eucalypt v Rbin Nt bslete if there is sme chance that it may becme material in the future: Eucalypt v Rbin (easement fr cars after ersin f rad frm cyclne t pass ver land 20m wide had stpped using due t esplanade new rck walls mre sand n cyclne since 1974 still nt bslete since cyclnes abut nce every 30 years may be needed in the future) Must shw that what was nce useful is nw nt useful at all: Avern v Mbuzi (easement fr 10m wide driveway fr develper nw residential n evidence that future wners might nt use nt bslete n ffer f cmpensatin) (b) Extinguishment will nt Substantially Injure the Dminant Owners Decrease in value Residential Enjyment: Eucalypt v Rbin (lss f beach access material lss enjyment decrease in ptential sale price) Grund 4 [high standard] Servient wner must establish that (s 181(1)(b) & (d); Eucalypt Grup v Rbin) 1. Cntinued existence impedes sme reasnable user; and Easement will always interfere with land t sme extent must effectively sterilise fr requisite level f interference: Eucalypt Grup v Rbin (huse f same design culd easily enugh be cnstructed further back n the blck nt impeding) Nt sufficient Avern v Mbuzi Children being prevented frm playing n land Cncerns abut neighbur s dg ccasinally appearing Cncerns abut frictin with neighburs 2. Des nt give dminant wners any practical benefit r substantial value; and Will suffice if there is sme chance that it may becme material in the future: Eucalypt v Rbin (easement after ersin frm cyclne t pass ver land had stpped using due t esplanade new rck walls mre sand n cyclne since 1974 still nt bslete access in time f ersin & view (incidental benefit)); Avern v Mbuzi (easement fr 10m wide driveway fr develper nw residential n evidence that future wners might nt use nt bslete n ffer f cmpensatin) 3. Cntinuatin cntrary t public interest; and Althugh there is n public plicy against landlcked land (Nrth Sydney Printing) it is nt cntrary t public interest t allw peple t gain access t their land: Eucalypt v Rbin May arise if a develpment which needs the extinguishment f the easement prvides acute care health educatinal interest 4. Mney adequate cmpensatin; and N mney will adequately cmpensate lss f secure access views privacy: Eucalypt v Rbin (views t the suth alng the easement (nt ut t sea) mney adequate) In lieu f an ffer fr adequate cmpensatin, prbably n rder t extinguish: Avern v Mbuzi 5. Extinguishment des nt substantially injure the dminant wner. Decrease in value 8

9 Residential Enjyment: Eucalypt v Rbin (lss f beach access material lss enjyment decrease in ptential sale price) Trrens & Enfrceability against 3 rd Parties Must be in writing and registered: s82 LTA Easement by express grant Otherwise nly enfrceable equity thrugh exceptins t indefeasibility: s185(1)(c) LTA Implied grant (Wheeldn v Burrws) Easement f Necessity Easement by Prescriptin s185(1)(c) LTA (1) A registered prprietr f a lt des nt btain the benefit f sectin 184 fr the fllwing interests in relatin t the lt [ ] (c) the interest f a persn entitled t the benefit f an easement if its particulars have been mitted frm, r misdescribed in, the freehld land register; s185(3) LTA Fr subsectin (1)(c), the particulars f an easement are taken t have been mitted frm the freehld land register nly if (a)the easement was in existence when the lt burdened by it was first registered, but the easement particulars have never been recrded in the freehld land register against the lt; r (b)the easement particulars have previusly been recrded in the freehld land register, but the current particulars in the freehld land register abut the lt d nt include the easement particulars, ther than because the easement has been extinguished in relatin t the lt; r (c) the instrument prviding fr the easement was ldged fr registratin but, because f an errr f the registrar, has never been registered. The easement may be enfrced against a 3 rd party purchaser as an exceptin t indefeasibility if it has been mitted frm the register: s185(1)(c) LTA This sectin perates where Easement nt registered when land first registered never in the Trrens system: s185(3)(a) Initially recrded and later disappeared: s185(3)(b); James v Registrar (validly registered n CT mitted frm later issued CT exceptin established) Other than because extinguished Errr f the registrar was never registered against the lt: s185(3)(c); Papadupuls v Gdwin Des nt apply fr implicatin under W v B, fr example (cannt be registered): Aust Hi-Fi v Gehl Must be prperly executed must be an errr f the registrar: Stuy v BC Rnalds (equitable easement 3 rd party purchaser n ntice mere agreement nt sufficient n in persnam, mere ntice easement extinguished) Des nt include an agreement fr an easement Servient wner t get cmpensatin frm the Registrar Remedies 9

10 Where the uses r enjyment is interfered with the fllwing remedies are available: Abatement Eg pening a gate Self help shuld nt be used excessively t eg destry prperty Damages fr nuisance Easement rights may be prtected in the trt f nuisance Past damage nly des nt give remedy fr future disturbance cntinuing bstructin An injunctin t restrain further interference Equitable damages (ie., in additin t r in lieu f an injunctin) 10

11 EXTRA INFORMATION Kinds f easements: Right f way Right t light right t have uninterrupted passage f light t a building r particular windws; mre relevant in cuntry like England where light lwer than it is here. Wuld need very lw light and a very high building blcking it. Right f air right t prevent any interference with general flw f air acrss dminant land; that is the cnstructin f a building acrss a ventilatin r air ducts Right t water at cmmn law, natural right t water where flws in natural channel r stream. If smene divers, as riparian wners, there is a right against them. Therefre the right t stem r drain water is an easement. N natural right at cmmn law fr supprt f buildings. BUT s 179 PLA: An bligatin is attached t land nt t d anything n it which will withdraw supprt frm any ther land r frm any building placed upn it. Wheeldn v Burrws examples: On land path frm cttage ut t the rad. While the wner wns everything, wner frequently ges frm cttage ut t rad by means f path r driveway. Necessary fr reasnable enjyment f cttage. Only used it t get access t rad. Owner decided t subdivide and sell. Purchaser cmes ut, sees the cntinuus and apparent path, cming t bundary and cntinuing t the rad. Under this dctrine, purchaser shuld get right t g acrss vendr s land t the rad. That is a cntinuus and apparent easement because necessary fr reasnable enjyment f this land t get access t the rad. At they time they bught, wner f whle was using it t access the cttage. Blck f land ne side river, ne side rad. Owner had a huse near the rad. Owner spends lts f time ging alng path t the river, use t get access t rad and river. If wner subdivided and sld river frnt blck t smene else. Purchaser wuld get the right t crss this blck t the street because it s cntinuus and apparent, visible path n the land, necessary fr reasnable enjyment f riverfrnt blck that have access t the street. At the time f the grant, the wner f the whle f the land used this path t access bth the rad and the river. That is the principle f implied grant t the wner f the river blck. But there is n crrespnding principle in favur f vendr wh nly wns blck with street frntage. Vendr has lst right t use path acrss this blck t access the river. Only way t get that wuld have negtiated fr it at the time f sale, btaining an express grant frm this wner, and price reflecting intrusin n this wner s rights thrugh use f the easement. Case Ntes: Re Ellenbrugh Park A large area was subdivided int blcks suitable fr huses and each huse had a small yard In the middle was Ellenbrugh Park All f the wners f the huses surrunding the park and nearby were t enjy this single large private garden They all had t cntribute t the upkeep and all were entitled t enjy it Each f the wners were granted the full enjyment in cmmn with the ther (purchasers) f the pleasure grund Ellenbrugh park Issue Was the right t use and enjy the park an easement? 11

12 The curt lked at characteristics f an easement and said that there was n prblem with the 1 st element because there was dminant and servient tenement and 3 rd element because the dminant and servient peple were different Held that the easement did accmmdate the dminant land it had t have a cnnectin with the land A lt depended n the nature f the easement and here the land was t be used fr residential purpses and the right was t use a garden They said the right t use a garden r park enhances the value f a huse and is cnnected with its nrmal enjyment Here the access t a cmmunal garden did accmmdate the dminant land There was accmmdatin because it increased the enjyment and the value f the dminant land Westfield Management Ltd v Perpetual Trustee C Ltd Dminant land: Skygarden Servient land: Glasshuse Right f way 6.6 m wide ver subterranean driveway frm King St acrss Glasshuse land t Skygarden land Sught decl that culd use R f way fr access t Imperial Arcade (adjining Skygarden) and Centrepint (adjining Imperial Arcade). Grant: t regd prp fr time being f benefited land t g, pass and repass at all times and fr all purpses with vehicles t and frm dminant land acrss the servient land acrss the servient land = described entry frm King St, passage acrss Glasshuse site f servient land t reach Skygarden, being the destinatin. t and frm the dminant land = wrds like this suggest that the purpse is access t and frm the dminant land, nt access t mre remte land that culd be reached by ging acrss the dminant land. If the parties had intended that the grant wuld authrise the dminant wner t g acrss the dminant land t ther prperties, the wrds acrss the dminant land culd have been added. Westfield relied n fr all purpses argued that this included accessing Skygarden, and frm there, travelling t mre remte prperty. Purpses are limited t purpses that cnfer benefit n the dminant land, by making it a better and mre cnvenient prperty, rather than giving a persnal advantage t the wner f the dminant land. Grant f easement always carries with it ancillary rights necessary fr enjyment f the easement. This was nt necessary fr the enjyment f these rights fr access t Skygarden that thse persn that are using the easement t access Skygarden culd pass beynd Skygarden t ther land. Westfield als argued that at the time f the grant, it had been cntemplated that parties wuld g frm Skygarden t ther prperties, but the curt said culdn t lk at facts and circumstances beynd the register, because ur Trrens System depends n the reliability f the reliability f central Trrens Register, and persns buying later culdn t resrt t extrinsic evidence t find ut what the circumstances were at the time that the easement was created. Cnstructin f an easement desn t depend n surrunding facts and circumstances. Cnstructin f a Trrens easement depends n what is actually in the register what the grant is as it was registered. 12

13 Wheeldn v Burrws T was the wner f land and sld part f it t P (vacant land) He retained the rest which was a wrkshp and didn t reserve any rights ver the part sld T then sld the wrkshp t the defendant and the plaintiff wanted t build n the land and bstruct the light cming t the windws f the wrkshp Defendant claimed a right t light Principle f implied grant was where an wner f land sells part f it, there passes t the purchaser by way f implied grant (withut wrds) cntinuus and apparent easements (indicate sme feature n the land that peple can see if yu re a purchaser, yu can see a pathway r a track) necessary fr the reasnable enjyment f the part sld (if there was a path t the bus, it is nt in terms f abslute necessity, but necessary fr enjyment) which at the time f the grant were used by the wner f the entire parcel fr the benefit f the part later sld (the wner f the whle lt has sme track r path leading nt the part that he/she nw sells, purchaser inspects and ntices the track and that it is much mre cnvenient t use this track (wner is presently using the track), withut wrds f grant, the purchaser btains access by means f that track r path) The curt rejected the claim because there is n crrespnding principle f implied reservatin in favur f a vendr (s the vendr wh is selling des nt get a benefit, if they want smething back, they have t prvide fr it expressly) T wanted t make up fr the fact that they hadn t made a prvisin fr the light It was said that there is n similar principle f implied reservatin nn-dergatin frm grant, except fr easement f necessity This means that a grantr wh wishes t reserve an easement must when selling d s expressly (i.e. must btain a grant f easement frm the purchaser) The reasn why the curts will nt imply a reservatin is because f the principle f nndergatin frm grant Australian Hi-Fi Publicatins v Gehl Savage wned land and subdivided in 1969 and sld lt 1 t Gehl The circumstances were such that Gehl wuld have been entitled t Wheeldn v Burrws easement against Savage ver their lt 2 In 1978, Savage sld lt 2 t a Cmpany wh tried t stp Gehl crssing the land The issue was whether Gehl had an easement available against a later registered prprietr f what wuld have been the servient land Held that it culdn t be enfrced against a later registered prprietr The curt said that this Wheeldn v Burrws easement was nt registered, and it culdn t be registered If there had been sme cnsideratin paid fr the right, the curt wuld have rdered Savage t give Gehl an rdinary grant f easement that culd have been registered As between immediate parties, if the circumstances are such that the purchaser is entitled t a Wheeldn v Burrws easement, if the purchaser acts quickly (while the vendr still wns the land) the curt can rder the vendr t give a grant f easement and then it can be registered That hadn t happened here, s it wasn t registered and s it wasn t enfrceable against a later registered prprietr Nrth Sydney Printing v Sabem Investments Crpratin 13

14 The wner f lt 4 (which was landlcked with a cuncil car park and n ther sides) had subdivided land and set up lt 5 and he intended t get the cuncil t extend the carpark and take ver the lt The wner als wned Lt 5 but had sld it, it wasn t landlcked but he didn t have access t lt 4 hwever did nthing Owner f lt 4 culdn t negtiate with cuncil, s he went t curt and tried t get an rder fr an easement t crss lt 5, claiming it was an easement f necessity Held that the basis f an easement f necessity is intentin can be actual r presumed The curt presumed the intentin that he intended t have access ver the land that he d sld The basis is nt any public plicy against lcked land They culdn t find the intentin in this case the wner f lt 4 had never intended t have access t lt 4 ver lt 5 the intentin was instead that the cuncil wuld extend the carpark, s the curt wuld nt grant an easement f necessity Dewhirst v Edwards There were several blcks f land The wners f huses fund it cnvenient t access their garages by crssing land at the back (they did this fr mre than 20 years) Edwards bught the blck and built a huse and cut ff access The wners claimed that they had prescriptive easements ver the land Held, the Trrens system des nt recgnise easements by prescriptin (dubt yu can get easement by prescriptin ver Trrens land) Even if it did, the curt als said that nce Edwards became registered, he tk free f any alleged easement by prescriptin (culd nt prevail against Edwards as later registered wner) Once Edwards tk ver in 1978, they kept accessing until he blcked the land The curt said they hadn t used the easement against him fr lng enugh, and the Trrens system wuldn t recgnise it anyway (even if did have 20 years, nt against Edwards himself) Re Seafrth Land Sales The dminant land was cmpletely landlcked and by mistake when they bught, they thught there was a public rad The dminant wner als wned tw back blcks and culd have gt ut that way, but it wuld be difficult because ne blck had a huse and swimming pl The dminant land had a factry n it and needed access fr trucks The ther blck als had a huse and it was rented The curt had t wrk ut the principles and said they decided t grant the right f user They said even thugh there was access thrugh the back blcks, the right f user culd still be granted and the applicant just had t shw it was reasnably necessary, nt abslutely necessary The applicant didn t have t shw it was in the public interest, just that it was cnsistent with it (it is nt necessary t psitively benefit the public) The servient wner had demanded $18000 cmpensatin and parking space fr cars The curt said that demands fr an uncnscinable amunt can lead t a refusal In assessing cmpensatin, they lked nt nly in the decrease in value f the servient land, but als at hw the applicatin had cme t be made (the dminant wner had been mistaken) 14

15 The curt granted the right f user and gave cmpensatin f $8000 Edward Street Prperties The applicant had land that was cmpletely land-lcked and applied fr a statutry right f user One respndent had plans t extend her huse and the easement wuld impse hardship upn her The ther respndent purchased the land because it was suitable fr use as a vegetable garden; he als wanted t relcate his garage and was later thinking f subdividing Curt held that t impse a right wuld defeat the purpse fr which the respndent had purchased the prperty It wuld impse hardship and wuld have lwered the ptential value f the prperties and ability t subdivide the lt The curt als wasn t satisfied that the respndents culd be adequately cmpensated and they said that value alne wasn t decisive, that they tk int accunt persnal factrs James v Registrar-General In May 1964, by transfer under the Real Prperty Act 1900 (NSW), a right f way was created, the land transferred being the servient tenement This easement was nted n the certificate f title f the land transferred A few weeks later the dminant tenement was transferred The easement was nted n the certificate f title fr the dminant tenement When a new cert f title f the servient tenement issued in July 1965 the easement was mitted t be nted By transfer dated 7 September 1965 M transferred the servient tenement t H Cmpany by cntract dated 19 Nvember 1965 H C sld and J purchased the servient tenement and, in January 1966, she became the registered prprietr At this date the easement was still nt nted n the certificate f title f the servient tenement and J was nt aware f its existence She was a bna fide purchaser fr value The Registrar-General requested J t prduce her certificate f title s that, pursuant t s 12(d) f the Act, he culd nte the easement n it On legal advice, J declined t d s J's mrtgagee later prduced the certificate t enable registratin f his mrtgage and, in Nvember 1966, the certificate f title was amended by the endrsement f a ntificatin f the easement It was held that the missin f the ntificatin f the easement was within the exceptin set ut in s 42(b) f the Act Sectin 135 f the Act perates subject t the exceptins set ut in s 42 The entry f the ntificatin was authrised by s 12(d) The Real Prperty Act 1900 NSW, s 42(1) prvides that the registered prprietr f land under the Act hlds subject t such ther estates and interests and such entries as are recrded in that fli but free frm all ther estates and interests that are nt recrded except, "(b) in the case f the missin f any right f way r ther easement created in r existing upn any land" Papadupuls v Gdwin The plaintiffs btained a transfer in prper frm f the right f way in the transfer f the blck f land and presented it t the Registrar-General wh accepted it The Registrar General failed t recrd it n the defendant s certificate f title The prvisins f the Real Prperty Act impse a sufficient duty n the Registrar-General t 15

16 recrd an easement n the fli f a servient tenement t make his failure t d s an "missin" within s 42(1)(b) When a transfer, in prper frm, f an easement is presented t the Registrar-General and accepted by him, the persn ldging the transfer is entitled t assume, withut further inquiry r search, that the Registrar-General will carry ut his duty under the Act and recrd the easement n the servient tenement, and failure t inquire in such circumstances shuld nt be regarded as pstpning cnduct in equity Wtten J They culd nt have been aware f the Registrar-General s failure t recrd the right f way n the defendant s title withut sme further inquiry r search which they were under n duty t make. They were entitled t assume that the Registrar-General wuld carry ut his duty under the Act. Indeed, s 42(1)(b) f the Act specifically prtected them if he failed t d s. Being unaware f the Registrar-General s missin they culd nt be under a duty t mve t crrect it r t enter a caveat in respect f the mitted easement. The curt held that there was an exceptin t indefeasibility s the easement did prevail and culd be enfrced Stuy v BC Rnalds Tw adjining landwners made an agreement t grant an easement ver a cmmn driveway running between their lts They never executed a grant f easement r register it One f them sld and the new prprietr was registered with ntice f the easement Issue whether the easement was mitted Held it wasn t mitted s it wasn t ging t prevail against the new registered prprietr wh tk with ntice The judge explained that an easement ver Trrens land can nly be created by registratin f the apprpriate instrument An agreement between the parties create an equitable easement nly and it s nt enfrceable against successrs in title An easement that is nt prperly created is nt mitted and therefre is nt an exceptin t indefeasibility 16