Tpic 9 Easements Natural rights Rights which autmatically flw frm the natural character f the land Examples: Right t take advantage f natural resurces n land Right t take advantage f light n prperty Right t the flw f water n the land Right t the shade f trees frm the land Passes autmatically with natural state f land Easements are created t add t natural rights assciated with land Dminant tenement Servient tenement Intrductin and nature PLA= prperty law act An easement is simply a right f use f land- ne persn grants t anther the right t f using land Can be made expressly r by reservatin (implied) An easement is an intangible r incrpreal prprietary interest in land It s a right annexed t land t use sme ther persn s land in a particular manner r t prevent the wner frm using it in a particular manner Right annexed t land: right taken frm ne estate and grafted t anther estate Easement is an intangible interest in land It is a right which is enfrceable ver ne piece f land (servient tenement) which may be utilised by wner f anther piece f land (dminant tenement) Easement is created fr the benefit f the dminant tenement and burdening the servient tenement As easement is an incrpreal hereditament and is prprietary in nature; Cmmissiner f Main Rads v Nrth Shre Gas C Ltd Incrpreal hereditament refers t the intangible nature f the right. Hwever, easements are nevertheless prprietary in nature and are enfrceable in rem (against the whle wrld) and can be inherited. The easement is prprietary in nature but it des nt, hwever, carry pssessry rights that are usually assciated with crpreal wnership. Rather, the wner f an easement wns a right, enfrceable in rem. Hwever, the easement hlder des nt wn the land against which the easement is enfrceable.
Hlder f an easement hlds a fee simple estate ver dminant tenement and an incrpreal right ver servient tenement Psitive r negative easement Bradly, there are tw types f easements: 1. Psitive easements; and 2. Negative easements; Phipps v Pears (1) A psitive easement: Gives the wner f the dminant tenement a right t himself t d smething n r t the servient tenement; Phipps v Pears Examples f psitive easements include: A right f way acrss anther s land; Treweeke v 36 Wlseley Rad Pty Ltd A right t enjy an area f anther s land as a garden; Riley v Penttila A right t park a car n the servient tenement; Lndn & Blenheim Estates Ltd v Ladbrke Retail Parks Ltd (2) A negative easement: By cntrast des nt give the wner f the dminant tenement a right f entry but merely a right t prevent smething being dne n the servient tenement that is incnsistent with a particular use f the dminant tenement; Phipps v Pears Examples f negative easements include: A right that the light flwing ver adjining land t a windw shall nt be reasnably bstructed; Clls v Hme & Clnial Stres Ltd A right fr lateral supprt f a building This wuld require the wner f the servient land nt t demlish a retaining wall that is n his land A right that a neighbur will nt cut dwn their trees This was a negative easement n the 2007 exam and is valid. The trees were ld and beautiful and prvided privacy. Right t receive water thrugh pipes Right t flw f air thrugh a defined aperture S, an easement is the wnership f an additinal right which attaches itself t the natural rights flwing frm crpreal wnership. Easements distinguished frm similar rights 1. A grant f an easement des nt invlve the remval f any part f the sil r natural prduce f the land; Mitcham City Cuncil v Clthier This distinguishes an easement frm a prfit a prende A prfit a prende gives the hlder a right f entry upn anther s land t take sme prtin f the sil r its natural prduce such as gravel, timber, pasture and minerals; Manning v Wasdale Mrever, unlike an easement, which must be attached t a dminant land, a prfit may be granted in grss r withut any land t be benefited; Ellisn v Vukicevic The nly similarity between an easement and a prfit is that there are bth incrpreal hereditaments; Cmmissin f Main Rads v Nrth Shre Gas C Ltd 2. The main distinguishing feature between an easement and a licence is that an easement cnstitutes an interest in land, whereas a licence des nt pass any interest, it is bare permissin; Re Ridgeway and Smith s Cntract Unlike an easement, which binds successrs in title, a licence nly binds the licensee and the licensr buy nt subsequent dealers in the land, even with ntice; Re Ridgeway and Smith s Cntract
REQUIREMENTS FOR THE CREATION OF A VALID EASEMENT The requirements fr a valid easement are as fllws: i. There must be a dminant and servient tenement; ii. The easement must accmmdate/benefit the dminant tenement; iii. The dminant and servient tenement must be held by different peple; and iv. The rights must be capable f frming the subject matter f a grant; (Re Ellenbrugh Park; accepted as part f Australian law in Riley v Pentilla) All the requirements must be present fr the creatin f a valid easement (i) Dminant and servient tenement The dminant and servient tenement are als knwn as the benefited (dminant) and the burdened (servient) land Dminant and servient tenement need nt be cntiguus Prprietary interest runs with the dminant land benefiting successrs in title and burdening successrs in title f servient tenement As easement which cnfers n specific benefit n land (absence f dminant tenement) is knwn as an easement in grss cmmn law easements cannt be in grss It is wrth nting here that statutry easements can be in grss; s187a Lcal Gvernment Act 1989 (Vic) This is mst likely dne fr the benefit f cuncil wrkers. At cmmn law, fr a right t be an easement, there must be bth a dminant and servient tenement; Cncrd Municipal District v Cles S, t reiterate, the dminant tenement is the land t which the easement is attached (the land benefited) and the servient tenement is the land ver which the right is granted (the land burdened) Bth must be identifiable; Jhnstne v Hldway This will be sufficient if, even thugh nt expressly referred t, the dminant tenement can be inferred frm all f the circumstances; s97 PLA The dminant tenement can cnsist f incrpreal prperty r bth crpreal and incrpreal hereditaments; Gas & Fuel Crpratin (Vic) v Barba A purprted grant f an easement, such as a right f way, t a persn wh des nt wn land that can be benefited, cnfers nly a persnal licence which is enfrceable amngst the parties but des nt bind the subsequent wner f the servient land; Cmmissiner f Main Rads v Nrth Shre Gas C Ltd Fr example, it has been held that a reservatin f a right f way that made n reference t the dminant tenement fr which the way was reserved, did nt impse any burden n the servient tenement; Gapes v Fish Mrever, the right f the public t pass and re-pass alng a highway is nt an easement as members f public have n dminant tenement t be benefited; Rangeley v Midland Railway C Because an easement is incapable f existing withut a DT and a ST, it cannt be sld as a lt independently f the dminant land; Tuckett v Brice An easement must have a servient tenement; Faln & Piesse v District Land Registrar It is necessary fr an easement that there shuld be land ver which it is exercisable that can be defined and pinted ut ; Wdman v Pwllback Clliery A servient tenement may serve mre that ne dminant tenement; Harada v Registrar f Titles (ii) The easement must accmmdate the dminant tenement An easement must bth accmmdate and serve the dminant tenement and it shuld be reasnably necessary fr the better enjyment f that tenement; Frater v Finlay Fundamentally a land interest: right enfrceable against land t prvide a benefit t the dminant tentement
The easement must accmmdate the benefited land, nt the wner f the land. The persnal interests f the wner des nt matter, it is the benefit t the land which is f relevance Said differently, the easement will nly be enfrceable where it can be prven that it accmmdates the dminant tenement. It will nly d this where it prvides benefit t the tenement. This benefit cannt be merely persnal; it must be sufficiently attached t the enjyment f the land in general; Ackryd v Smith Example An annual pass t attend cricket at MCG t wner f nearby huse is nt an easement Easement must be cnnected with the enjyment and benefit f the dminant tenement as land In rder t accmmdate the dminant tenement, it Is nt necessary that the dminant and servient tenements be cntiguus (sharing a cmmn barder); Pitt v Durham Cunty Water Bard. Saying this, hwever, the tw tenements must be clse enugh t cnfer a practical benefit t the dminant tenement; Dewhirst v Edwards Fr example: An easement f way may accmmdate the dminant tenement if (althugh it des nt abut n the servient land) it is sufficiently clse t it fr the wner f the dminant land, if he r she can acquire permissin t pass ver the intervening land, t use the servient land as a means f access t a public way; Dewhirst v Edwards Similarly, it has been held that rights granted t a water supply crpratin t lay pipes n private land nt cntiguus t any land wned by the water cmpany fr the purpse f supplying water cnstituted a valid easement; Gas & Fuel Crpratin (Vic) v Barba Hwever, the greater distance between the tw tenements, the mre difficult it is t prve that an active ascertainable benefit is cnferred upn the dminant tenement; Tdrick v Western Natinal Omnibus There have been cases where easements have been held t be valid where the tw tenements have been up t 30km apart. There must be a nexus between the easement right and the enjyment f the dminant land; Riley v Penttila The law f easements was develped t facilitate the ccupatin and enjyment f particular pieces f land this shuld be remembered at all times. Frm this, the primary questin asked is t what extent des the alleged easement perfrm these functins; Harada v Registrar f Titles Frm this, a new easement cannt be created at the leisure f the dminant tenant wner. If this was permitted, then an infinite variety f rights might acquire an in rem status despite their disassciatin with the land; Hill v Tupper Rights t use and enjy bats fr recreatinal purpses n canal which abutted dminant tenement was uncnnected with physical enjyment f land (Hill v Tupper) The fact that a right increases the market value f the dminant tenement, thugh remaining a relevant cnsideratin, is nt cnclusive that it is an easement; Re Ellenbrugh Park In that case, a right was granted t a landwner whse prperty abutted Lrd s Cricket Grund t attend cricket matches fr free. It was held nt t be an easement because it was nt cnnected with the nrmal use f the prperty. A right may accmmdate the dminant tenement despite the fact that it nly prvides a benefit t a small prtin f the land; Registrar f Titles Whether a particular right is cnnected with the use f the intended dminant tenement depends n the nature f the subject land and the nature f the right granted; Riley v Penttila
The requirement is satisfied s lng as the right claimed culd be f sme pssible benefit t the enjyment f the dminant land; R v Registrar f Title; Ex p Waddingtn The test applicable is whether the right being claimed is given fr purpses whlly uncnnected with the dminant tenement; Ackryd v Smith. If it has sme cnnectin with the enjyment f the dminant tenement (r a business cnducted n it); Harada v Registrar f Titles, then it is an easement; Ackryd v Smith Whether a right granted accmmdates the intended dminant land is determined at the date f the grant and nt at a later date. Therefre the fact that the benefits f an easement are diminished r enlarged by subsequent events in irrelevant; Huckvale v Aegean Htels Ltd An easement is appurtenant (belnging, pertinent) t, and fr the benefit f the dminant tenement as a whle; Gallagher v Rainbw Accrdingly, where the dminant land is subdivided, t the extent that any part f the land may benefit frm the easement, prima facie the inference is t be drawn that the easement will be enfrceable fr the benefit f that part; Guth v Rbinsn This presumptin can be rebutted if the easement, n its true cnstructin, benefits the dminant land in its riginal frm nly (befre the divisin) r where therwise stated in the grant; Crawfrd Realty C v Ostrw (iii) The dminant and servient tenements must be held by different peple A persn cannt have an easement ver his wn land; Reilly v Bth An easement is a right a persn has ver anther s land. Where the wner f Whiteacre and Blackacre passes ver Whiteacre t reach Blackacre, he is nt exercising a right f way in respect f Whiteacre; but rather making use f his wn land t get frm ne part t anther; Re v Siddns Similarly, a grant f a right f way where the wner f the dminant land is a cwner f the servient land des nt amunt t an easement; RJ Finlaysn Ltd v Elder, Smith & C Ltd If dminant and servient tenement are held in same wnership, easement is extinguished N need fr easement when bth prperties are wned by the same persn BUT where persn wns bth prperties but nt in pssessin f bth, may be easement Eg Owner f servient tenement leases ut dminant tenement, the lessee may acquire easement rights ver servient tenement fr duratin f lease Hwever, be aware f situatins where an easement may be created ver land where bth tenements are wned by the same persn. This will ccur when the wner has given pssessin t thers and different persns ccupy the dminant and servient tenements. This will happen with respect t leases. This will als apply if the landlrd has nly leased ut ne f the tenements. In this situatin, the landlrd can reserve an easement f way, fr example, ver part f the land ccupied by a tenant in favur f the land that he has chsen t retain, and vice versa; Maurice Tltz Pty Ltd v Macy s Emprium Pty Lt (iv) The right must be capable f frming the subject matter f the grant Right must be capable f frming a subject matter t which an easement may relate A right which is vague, bscure and indistinct may nt cnstitute a valid easement because such rights d nt, in substance, cnfer a definitive benefit upn the dminant tenement. The nature f the right and its extent must be capable f exact descriptin must be precise and certain; Riley v Penttila.
A right that is t vague and imprecise cannt be classified an as easement; Cnfers uncertainty n the wner f the servient tenement as t scpe f activities and rights Nt reasnably necessary t the use and enjyment f dminant tenement Examples: prtectin frm weather, privacy, right t view, right t general flw f air r mere right f recreatin r amusement wuld be uncertain Auerbach v Beck Fr example: A right t wander freely ver a neighburs land cannt frm the subject f an easement because it is s indeterminate as t defy precise definitin; Re Ellenbrugh Park. This particular right is refered t as a right f jus spatiandi and generally cannt be capable f frming the subject matter f an easement. Hwever, it has been held that a right t enjy a defined area (such as a garden r a park) fr recreatin given t a limited number f landwners is certain, and therefre, a valid easement; Riley v Penttila Therefre, the granting f a right fr pure recreatin will nt be s vague as t prevent the creatin f a valid easement, prvided that it is cnstructed sensibly and reasnably; City Develpments v Reg General f Nrthern Territry It has als been held that a grant f right f way ver neighburing land will nt fail as an easement in this regard, even if it des nt define the exact way r rute t be fllwed by the wner f the intended dminant land; Maurice Tltz Pty Ltd v Macy s Emprium Pty Ltd Must have sme degree f permanence and stability Sme ther rulings n whether rights are capable f frming the subject matter f the grant: It has been held that a right f undefined flw f air and light ver neighburing land can cnstitute an easement where created by express grant; Cmmnwealth v Registrar f Titles Als, a right t enter adjining land fr the purpse f maintaining the external wall f a dwelling huse is nt t vague and as such is a valid easement; Auerback v Beck Hwever, a right f privacy (Brwne v Flwer) and a right f prspect r view has been held t be t imprecise t cnstitute the subject matter f an easement; Palmer v Bard f Land & Waters In that case, a claim f a right t an unbstructed view f the sea was rejected as an easement. It is very imprtant t nte that attitudes f what can and cannt cnstitute an easement can change ver time; Riley v Penttila In the case f Evanel v Nelsn it was recgnised that the right t access garden facilities r general recreatinal areas can cnfer an imprtant benefit upn land in mdern sciety (due t urbanisatin). Easements which may ffend this requirement are ften thse which have arisen either impliedly r by prescriptin. In such circumstances, the absence f express articulatin means that the precise scpe and nature f the right can be unclear Recreatinal and jus spatiandi easements jus spatiandi: right t ram r wander at large ver anther s field/park is generally incapable f frming the subject matter f an easement The mst cntentius and litigated frm f easements which mst cmmnly will nt frm the subject matter f the grant are easements relating t the right f recreatin It is very prbably that this kind f easement culd be examined n an exam. It is very imprtant t understand the attitudes f the curts twards these jus spatiandi easements.
Easements regarding the right t wander at large were cnsidered in the case f Re Ellenbrugh Park It was held in this case that the right did cnstitute an easement because it prvided a brader benefit t the wner f the land and was therefre t be viewed as a beneficial attribute f the land. Re Ellenbrugh Park [1956] Facts: In 1885, land surrunding Ellenbrugh Park was sld in plts t individual purchasers. Each purchaser acquired a fee simple in the plt, and in additin, als acquired an easement t use the rads and ftpaths and drains n the estate and als the full enjyment at all times hereafter in cmmn with ther peple t whm such easements may be granted f the pleasure grund set ut and made in frnt f the said plt f land in the centre f the square called Ellenbrugh park subject t the payment f a fair and just prprtin f the csts, charges and expenses f keeping in gd rder and cnditin, the said pleasure grund. The pleasure grund was als subject t a cvenant that it wuld nt be built upn, the benefit f which was enjyed by the tenants. In 1880 the wner f the part died and the relevant areas vested in his trustees. The issue, inter alia, was whether the wners f the plts had a valid easement ver the park. Judgement: Evershed MR gave the judgement and he fund that the right was definable and hence the easement was valid and enfrceable. Frm this case: In his judgement, Evershed MR examined the rudimentary basis f the easement. He nted that the right t wander is t brad and can never be made ut as an easement. Hwever, Evershed MR did nt characterise the right in this case as a right t wander, rather, he cmmented that it shuld be articulated as a recreatinal right and that right was appurtenant (thus definable) t a private residence, and, further, it prvided a clear utility and benefit t the dminant tenement and was therefre t be regarded as a beneficial attribute. Reasned: the right t use and enjy garden valid frm f recreatin ver land and shuld be cntrasted with mere right t ram and wander ver the land. Beneficial attribute rather than a recreatinal right Anther imprtant cnsideratin in this case was that there was n clash f prprietary interests. In the case f Victria Park, if wnership was given ver the spectacle, then it wuld have impacted upn ther wner s prprietary rights t use their land they culd nt g n their balcnies and lk in the directin f the racecurse. Hwever, n these facts, n-nes rights were being impinged by the granting f the easement and, Evershed nted that this was an imprtant factr in the right be articulated as a valid interest. Nte that running thrugh the judgement is als a ntin f public plicy peple need t be able t use recreatinal facilities. The cnclusins f Evershed MR in Re Ellenbrugh Park were raised by the Victrian Supreme Curt in the case f Riley v Penttila, a case which examined recreatinal rights that attached t a park reserve Riley v Penttila [1974] Facts: A subdivisin created a number f alltments that abutted nt an area knwn as Outlk Park Reserve. The purchaser f each lt gets a fee simple alng with the liberty t use and enjy, in cmmn, the park in the middle f the land. The subdivider, Keam, expressly cnferred the benefit f this easement t each purchaser when they acquired the fee simple. All lt wners given easement ver the reserve fr recreatin r as park/garden: liberty t enjy the reserve fr the purpse f recreatin r a garden r a park. It eventuated that the land was used fr a range f different activities. A prtin f it was fenced ff fr a tennis curt. Other area were used as a garden and a playgrund. In 1971 the defendants purchased ne f the alltments and began t excavate the area and built a swimming pl. A ttal f 18 neighburs, all hlding the express right t enjy the land, bjected t the building f the swimming pl. They claimed that they were entitled t use and enjy the land in cmmn with each ther and that the building f the swimming pl interfered with this right. The defendants cunter claimed hlding that they adversely
pssessed the land. Fr this area f this curse, what is f interest is Gillard J s cnsideratin, inter alia, whether the recreatinal right was an easement Judgement: it is held by Gillard J that the recreatin right is a valid easement Frm this case: Gillard J s judgement is largely based upn the findings in Re Ellenbrugh Park. Gillard ntes that in this case, the decisin is even clearer as there is an express statement frm the subdivider which appears t evince the intentin that an easement shuld be cnferred. Gillard als cmments that the intentin culd als be inferred by the fact that the easement was cnferred upn any relatins f the prprietrs. Gillard ges n t emphasise the utility f recreatinal rights and that they are vital fr gracius living and nting that it is necessary t have space fr a garden and recreatin and that an extended private recreatinal facility adds significant enjyment and benefit t the residence. Therefre it was nt a jus spatiandi, but a defined private right f recreatin. His hnur nted that a right t enjyment f a specific area fr recreatinal purpses, which has been given t a defined number f landhlders and which benefits a particular area f land, is capable f frming the subject matter f a grant The liberty t use and enjy a reserve in cmmn fr recreatinal purpses is nt t vague because rights were set ut with detailed certainty and the purpse f the right being clear. NOT REALLLY RELEVANT HERE, BUT COULD BE IN EXAM AP QUESTION ----- Regarding the AP claim by the defendants, as the land was judged t be the subject f an easement, there culd be n AP as if yu have an easement ver land yu have permissin t be n it, and permissin will defeat an AP claim. Imprtance f recreatinal right fr gracius living emphases: adds t enjyment f lts Distinguished: Ellenbrugh Park: mre explicit wrds and mre direct cnnectin between right ver reserve and land held by wners: 2 factrs precluded uncertainty S, frm Re Ellenbrugh Park and Riley v Penttila the fllwing will be required in rder t apply these cases t a recreatinal easement Bth cases invlve park land. The facts in bth cases invlve an express grant Hwever, the grant in Riley was mre specific than the grant in Ellenbrugh Park In bth cases the easement applies t a number f peple in cmmn In bth cases there is n clash f prprietary rights generated by the awarding f the easement In bth cases, n the facts, the right was a beneficial attribute, appurtenant (belnging) t the surrunding hmes and that: Its use f the purpses, nt nly fr exercise and rest but als fr such nrmal dmestic purpses as were suggested in argument fr example, taking ut small children in perambulatrs r therwise is nt fairly t be described as ne f mere recreatinal amusement, and is clearly beneficial t the premises t which it is attached in ; Per Evershed MR in Re Ellenbrugh Park Frm this, the easement must cnfer mre than just mere amusement; it must be beneficial t the way that life is lived n that premesis. A right cannt cnstitute an easement unless the persn wh makes the grant has a sufficient estate in the servient land and the capacity t make the easement; Thwaites v Brahe The quantum f the grantr s estate in the servient land determines the quantum f the easement that he may grant. Therefre, in rder t create an easement in fee simple by grant, the grantr must be the legal wner f the servient land in fee simple; Hedley v Rberts In additin t having an interest in the servient land, a grantr f an easement must have a legal capacity t make the grant; Thwaites v Brahe. Cmmn easement can cnstitute an easement
Must be validated in accrdance with frmality requirements fr creatin f legal r equitable easements Cmmn easement rights: Right f way Right f supprt Right f drainage Rights relating t flw f air r light thrugh a defined channel Nt clsed list Easement f air thrugh defined channel is acceptable Rights t slar access (scpe and nature) METHODS OF CREATING EASEMENTS Easements just dn t arise, they must be created; Riley v Penttila Bradly there are fur main types f easements and tw mre, smaller types f easements: 1. By express grant OR By express reservatin OR by equity ; 2. By implied grant; (a) by grant (b) by necessity (c) by cmmn intentin r cnstructin 3. By statute 4. By prescriptin