Easements and Covenants PDF

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Easements and Covenants ...

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EASEMENTS AND COVENANTS REFERENCES: Mackie, Histed & Page, Australian Land Law in Context, Chapters 13 & 14 MGG, Text, Chapters 17 & 18 Conveyancing and Law of Property Act 1884 Land Titles Act 1980 (Google Earth: For those that have access to Google Earth or Google Maps, you may find useful to look at the address from the case on Google Earth, and get a visual image of the ‘lay of the land’. On some of the decisions cited, the address has been identified as noted in the judgment) Problem solving 1. is there an easement? 2. How has the easement been created? 1. Introduction We will consider how easements may be distinguished from:

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Leases

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Restrictive covenants

Easements: right constituting a legal interest in land and benefiting one piece of land from the use or a restriction on the use of neighbouring land. Easement allows for the more convenient use of a parcel of land by rights over neighbouring land that do not substantially interfere with the enjoyment of the neighbouring land by its owner.

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Benefit does not have to be essential for the use of the benefitted land but it must assist the use of the land.

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Positive easements: allowing a benefitted owner to do something on the other land

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Negative easements: restrictions on the use of the other land enhanced by a benefitted owner (if A has easement that stops A from blocking the view of the dominant tenement by building something in a particular area, then A is the servient tenement with a

negative easement on the land) An easement requires: a benefit attached to another land and the burden imposed on a piece of land. 

Land benefitted: dominant tenement

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Land burdened: servient tenement

Easement vs Lease: lease has a right to exclusive possession of the land. Owner of an easement has no such right. Easement vs License: Licenses are only personal rights and do not bind third parties. Easements are proprietary interests and bind third parties. There is also no need to own land to have a license. Easement vs Natural rights: natural rights exist independently. Easements have to be created: they lie in grant. Restrictive covenants: exist only in equity Easement by grant v Easement by reservation Legal v equitable Easements For a legal Easement: a deed is needed (s 60(1) of the Conveyancing and Law of Property Act 1884 Under Torrens land: a deed is also needed but the easement must be registered.

For an equitable easement: a) Enforceable contract to create a legal easement that has gone wrong but still has either an agreement in writing, or oral agreement with part performance = equitable easement b)

Owner of equitable interest only in land grants an easement = equitable easement

c)

Equitable estoppel – owner makes a promise that you will have an easement and you rely

on that promise and suffer detriment etc. Equitable easements in Torrens land 

Exceptions to indefeasibility of title: LTA s 40(3)(e)(ii):

(3) The title of a registered proprietor of land is not indefeasible – (e) so far as regards – (i) an easement arising by implication or under a statute which would have given rise to a legal interest if the servient land had not been registered land; and (ia) an easement created by deed before the servient tenement became subject to this Act or the repealed Act; and (ii) an equitable easement, except as against a bona fide purchaser for value without notice of the easement who has lodged a transfer for registration;

2. Characteristics of an Easement As per Re Ellenborough Park:

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There must be a dominant and servient tenement (but they need not be contiguous)

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The easement must accommodate the dominant tenement

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The dominant and servient tenements must not be owned by the same person

IV.

The right must be capable of forming the subject matter of a grant a. The right must be clearly defined b. The right must be one of utility (rights of recreation cannot constitute easements) c. The right must not interfere too greatly with the burdened owner’s enjoyment of the land.

Requirement 1: Dominant and Servient Tenement If a person has a right over someone else’s land, they must have land of their own to attach that benefit to. If they do not have land that can become the dominant tenement, then the right is not an easement. If it is not possible to have a dominant tenement, then there will be an easement in gross: an easement without a dominant tenement. However, the CLPA: the Crown or any public authority can have an easement even though they do not own any dominant land.

There must be a connection between the servient and dominant tenements so that a benefit can be found from the easement for the dominant tenement. The right obtained must be reasonably necessary for the enjoyment of the dominant tenement. The right obtained cannot be a personal right for the current owner’s enjoyment; the right must be attached to the land, not the person The two pieces of land do not have to be beside each other but they need to be reasonably close to each other so that it can be shown how the dominant land benefits from the right given over the servient land. Defining the positive benefit conferred on the dominant tenement: 

Enhancement of land value is relevant but not conclusive

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The benefit conferred can be conferred on a number of different dominant owners (variety of owners using one right of way)

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Benefit can benefit some trade or business being carried on the dominant land

If the dominant tenement with an easement is subdivided, the easement will serve the subdivided lots: Gallagher v Rainbow Requirement 2: the easement must accommodate the dominant tenement

Requirement 3: the dominant and servient tenements must not be owned and occupied by the same person One cannot acquire rights against oneself. One cannot have an easement over land that you have a present right of possession over. Exceptions: LTA s 109: registered easements can exist even though there is only one owner of the pieces of land. However, the owner can apply to the Recorder of Titles to have the easement expunged from the Register.

Requirement 4: the right must be capable of forming the subject matter of a grant A. the right must be sufficiently definite: 

There must be some amount of precision with regards to what the right entails so that it can be enforced and understood.

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The rights cannot be too wide or vague.

B. easements should not impose positive burdens on the servient owner: The servient owner should be passive: doing nothing. Either they allow the dominant owner to do something on their land or they abstain from doing something on their own land. They should not have to spend money or do any positive or onerous action. Exception: the right to require a neighbour to maintain a boundary fence C. The right must not amount to exclusive use or possession of the servient tenement. An easement is always an interference with the possession of the servient owner. It’s a question of degree as to at what point the right obtained becomes more than an easement, as to when it becomes an exclusive use or possession of the land. Copeland v Greenhalf P was claiming the entire beneficial use of a strip of land to leave as many vehicles as he liked there, for as long as he liked, with the right to go onto the land or send his employees onto the land, to do repairs. Held: this claim was a claim to possession of the servient tenement strip to the exclusion of the real owner and the right’s nature was too wide and undefined. Therefore, it could not be an easement. Weigall v Toman An easement was granted to one neighbour to exclusively use a garage on the other neighbour’s land (the servient tenement)

Held: if the easement robs the servient owner of the reasonable use of his land, then it is invalid. Considerations: 

The proportionality between the servient tenement as a whole and the part of it over which the exclusive right is given

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The extent of the exclusivity claimed

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Whether the easement arose by prescription or by express grant

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Practicalities: the need to access the property, the safety and risk to the community, maintenance requirement etc.

Test: does the servient owner have reasonable use of his own land? Parking easements - Moncrieff v Jamieson, and Owners of East Fremantle Shopping Centre West … v Action Supermarkets. There is no reason a right to park a car on a defined portion of land couldn’t be an easement so long as it’s not so extensive as to confer on the user exclusive and unrestricted use of the defined portion of the land in question. See also Jea Holdings (Aust) Pty Ltd v Registrar General of NSW [2013] NSWSC 587 *Re Ellenborough Park [1956] 1 Ch 131 A large area was subdivided into blocks suitable for houses and each house had a small yard. In the middle was E park. All of the owners of the houses surrounding the park and nearby were to enjoy this single large private garden. They all had to contribute to the upkeep and all were entitled to enjoy it. Each of the owners were granted “the full enjoyment…in common with the other (purchasers) of the pleasure ground E park” Issue: was the right to use and enjoy the park an easement? Held: the court looked at characteristics of an easement and said that there was no problem with the 1st characteristic because there was dominant and servient and the third characteristic because dominant and servient people were different. The court said the easement did accommodate the dominant land – it had to have a connection with the land. A lot depended on the nature of the easement, here the land was to be used for residential purposes and the right was to use a garden. They said the right to use a garden or park enhances the value of a house and is connected with its normal enjoyment. Here the access to a communal garden did accommodate the dominant land. There was accommodation because it increased the enjoyment and the value of the dominant land. *Riley v Penttila [1974] VR 547 (33 Outlook Drive, Eaglemont, Victoria)

Re Ellenborough Park applied. Easement for the people living in the subdivision. The easement was for recreation and enjoyment. Held: the right was definite enough. The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180 Moncrieff v Jamieson [2007] 1 WLR 2620; 43 EG 200; UKHL 42 Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525

Clos Farming, the vineyard cultivator not only had an easement to go over the land of the individuals whenever it liked, with its employees, for the purpose of attending the vines, but also had the right to control the entire operation, and then sell the product, giving the net proceeds of sale, after taking the cost of the operation, back to the individual owners

Held: easement effectively deprived the individual owners of legal possession – the rights of Clos Farming were so large and over-arching that the other owners’ rights had become totally subordinated to it. There must be a natural connection between the dominant and the servient tenements and the right must be reasonably necessary for the enjoyment of the dominant tenement. It is not enough that the land be a convenient to the right; rather the nexus must exist in a real and intelligible sense. However, the facilitation of a business or commercial use in which the dominant land is involved in may, in limited circumstances, be sufficient to create the required nexus with the land provided that the criteria for an easement is satisfied. An easement should not unduly interfere with enjoyment of the burdened land. [Right infringed this rule]. Jea Holdings (Aust) Pty Ltd v Registrar General of NSW [2013] NSWSC 587 Affirmed Clos and added a test: whether the rights under the easement would amount to rights if joint occupation or would substantially deprive the owner of the burdened land of proprietorship or legal possession. In addition: 

An easement is limited to needs of the dominant tenement

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People other than dominant owner may benefit

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It may accommodate the business carried on the dominant tenement

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It may accommodate the subdivided parts of the dominant tenement

But the rights must NOT be: 

Wide and vague

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So large as to be a right of co-occupation ( Copeland v Greenhalf [1952] 1 Ch 488; S&N 10.24;

Note that originally rights of recreation could not constitute easements, but that in Australia today the courts have held that they can be valid easements: City Developments Pty Ltd v RegistrarGeneral (NT) [2001] NTCA 7. 3. Types of Easements and Rules of Construction Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; 81 ALJR 1887 (184 Pitt Street, Sydney) Construe the grant to ask what it authorizes, but with the ability to look at surrounding circumstances, including the physical circumstances of the dominant and servient tenements and the use actually being made of them at the time of the grant. It is also possible to look at communications made by the parties before the grant was made, and any other circumstances that you would be allowed to look at if you were just construing an ordinary contract. Courts will also look at things like the nature of the route, where it’s relevant. So if the space would not permit certain things to happen, then it’s obvious they weren’t intended in the grant. And they’ll look at the purpose for which the right of way was to be used – so a right of way for a business purpose might well be construed as allowing vehicles to pull up, and remain standing while they load and unload their wares. 4. Creation of Easements There are a number of ways to create easements. The first two – by statute and by express grant or reservation – are fairly straightforward. (i)

By Statute

A number of statutory provisions can impact on creation of easements – for example see CLPA ss 21, 34A, 74, 84J, 90A; LTA ss105-110; 138I, 138J. CLPA s 84J: allows the Supreme Court to create a statutory easement to facilitate the use of a piece of land for any public or private purpose. Courts are very conservative about creating these. Note it does not have to create an easement, it could create a licence, and it could create a right that expires after a certain period of time. CLPA s 90A: allows the creation of easements in gross: CLPA s 105-110: details the creation and extinguishment of an easement in registered land.

Section 105: easement may be granted in or over registered land for the benefit of any other land Section 108: the Recorder may cancel the registration of the easement upon application by a person having an easement or interest in land affected by an easement where: 

The period of time for which it was intended to subsist has expired

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The event upon which it was intended to determine has occurred

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It has been abandoned

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Where it is proved to the satisfaction of the Recorder that an easement has not been used or enjoyed for a period of 20 years, that proof is taken to be conclusive that the easement has been abandoned.

Section 109: easements can be expunged if the dominant and servient tenements are united in the one owner Section 110: Recorder has power to create easements in subdivisions, subject to objections Section 138I: doctrine of lost modern grant is abolished (ii) By Express Grant or reservation This is mainly concerned with individuals or companies expressly and deliberately granting easements to others. 

Private owners can create easements over their land. If both pieces of land are general law land you need a deed.

If no deed – equity will step in if there is a sufficient

memorandum in writing evidencing the easement, or if there are sufficient acts of part performance. 

If the servient land is Torrens but the dominant land is general law land you need to register a memorandum of Transfer.

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If both dominant and servient are Torrens land you need a registered memorandum of Transfer.

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If dominant land is registered, but servient land is general law land you need a deed

(which should be registered in the Deeds Register) (iii) Implied Reservation or Grant Reservation of an easement: where you sell the land but reserve an easement over the sold land for other land. Grant of an easement: where you sell land and grant an easement over the land that you keep to the buyer of the land.

There are times, however, when although a landowner has not granted an easement, the court is asked to determine that one exists anyway. A number of rules have grown up to determine when a court will imply the existence of an easement: a) Implied Reservation ai)

By Necessity

Easement of necessity: where the court is asked for a right that is absolutely vital for the enjoyment of the dominant tenement. 

Example: right of way for landlocked land.

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Easements of necessity are not based in public policy but based on actual or intended intention that the parties would have intended a right of way (or other easement) to be reserved or granted when the land was sold.

*North Sydney Printing Pty Ltd v Sabemo Investment Corp Pty Ltd [1971] 2 NSWLR 150 (Cnr Millar, Berry, Ward and McLaren Street, Sydney) 

North Sydney Printing subdivided land and sold part of it (lot 5) to Sabemo Investment Corporation. It retained the remainder of the land (lot 4) as it intended to sell this lot to the North Sydney Council. Lot 4 had no road frontage and no access to any public road except through land adjoining it owned by the North Sydney Council.

North Sydney

Printing and the North Sydney Council could not agree on the terms of an acquisition of lot 4 and North Sydney Printing approached the Court for an order that it was entitled to a right of way of necessity over the land sold to Sabemo Investment Corporation (lot 5). 

Held: the balance of authority establishes that a way of necessity arises in order to give effect to an actual or presumed intention. Of the principle upon which the doctrine of ways of necessity is based is related to giving effect to the intention of the parties in relation to the severance, any right of way of necessity could have arisen in the present case.

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An implied easement has to be based on finding the actual or presumed intention of the parties that it should be there. In this case quite clearly the owner had absolutely no intention of creating any access at all for that plot of land: it was always destined to be added to the Council land as a carpark and find its access to the road that way. A way of necessity arises only in order to give effect to an actual or presumed intention: at minimum on the part of the grantor “that he intended to have access to the land retained by him over the land conveyed by him”. Without that, you cannot imply a way of necessity.

So for an easement of necessity to arise you need: 

an intention, at least on the part of the grantor, that he or she retain a right over the

land sold at the time of sale 

the right must be essential for the use of the dominant tenement, not just a convenience

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if it’s a right of way, then if the owner has by their own acts cut off access to a road...