Easements AND Restrictive Covenants PDF

Preview

Summary

Easement and covenant summary...

Description

EASEMENTS AND RESTRICTIVE COVENANTS 

 

Right that govern how people may use the land of another by some private agreement for a planning purpose Easements run with the land and are not personal ot the owners TYPES OF EASEMENTS;

The Land Title Practice Manual in Part 9 explains1: Some Examples of Easements The easement right must be for an acceptable purpose which is capable of precise definition. Some easements that are regularly created include easements: 

of right of way for access;



of support of buildings;



for party (or shared) walls;



for drainage or sewerage reticulation;



for water storage/supply;



of retention of light or air;



for electricity transmission;



for encroachment;



CHARACTERISTICS OF AN EASEMENT 

1. DOMINANT AND SERVIENT TENEMENTS



 



2. ACCOMMODATE THE DOMINANT TENEMENT

  

1 [9-0040]

Four essential characteristics to an easement as per re elenborough park [1956] The dominant tenement is land which Is benefited by the easement from the servient tenement Servient is the person granting the easement or owner of which land is for the easement Created the same way as other interests in land by means of the executions of formal documents Lands benefited and lands burderend from the right must be clearly identified The benefit must be conferred on the dominant tenement Must relate to the user of the dominant tenement contributing to its full enjoyment Must be sufficient proximity between the two

tenements to enable a practical benefit to be conferred  MUST BE NECESSARY FOR THE ENJOYMENT OF THE DOMINANT TENEMENT  ACKORYED V SMITH  MUST OFFER A PRACTICAL BENEFIT  Must in some way benefit the dominant teminent  Must be made a better property because of the existence of the easement

3. DOMINANT AND SERVIENT TENANAMENTS MUST NOT BE OWNED AND OCCUPIED BY THE SAME PERSON

4. EASEMENTS MUST BE CAPABLE OF FORMING THE SUBJECT MATTER OF A GRANT

Re Ellenborough park  Ellenbroough park is located accrss the street from a row of houses  Person who owned that land that the park was on gave the builders of the house the full payment at all times hereafter in common pleasure of the ground when he sold them the land to build the houses.  People who live in the houses were applying to have their right to use the park recognised as an easement  The trial judge found this did not constitue an easement which the owners appealed  The appeal was dismissed, easement granted  MUST BE CONENCTED TO THE USE OF THE DOMINANT LAND- MORE THAN SIMPLY ADDS VALUE  MUST OFFER A PRACTICAL BENEFIT   Illustration of general common law principle that person cannot acquire rights against himself or herself  A registered plan of subdivision can only create easement if the lot ubrened and benefit is in common ownership of easement in gross is created in favour of public utility provider – LTA s 86-88  Cannot have easement over own land  Metropolitan railway co v fowler 

 

The rights granted falled within the general nature of rights capable of creation as easements The rights created require precise definition They cannot be too vauge or uncertain if they are to constitue an easement



 

Require a grantor capable of making the grant of easement and a grantee capable of receiving that grant Re Ellenborough park Regency villas title limited v diamond resorts

CREATION OF EASEMENTS EXPRESS AND IMPLIED EASEMENTS

 

May be created by express grant or reservation At common law such a grant is made by a deed

Exrpessly created Created by implicated

EXTINGUISHMENT OF EASEMENTS ABANDOMENT



    



Must be demonstrated that the easement right is not being used and that the dominant tenement is no longer an intention of using the easement Mere use is non sufficient Courts rarely except arguments because you are taking peoples rights away Mere non use for a long time isn’t sufficient use for extinguishment or abandonment . Creates an arguable case but needs something Needs like non user for 60 years, not even 20. Needs to be way for abandonment. Especially if registered even harder. Alternative access could suggest abandonment but cannot be forced by someone else

Treweeke. 36 Wolseley Road  The non user of the easement and the failure of the persons having the benefit of the easement to take any action with respect t othe obstruction placed on the property were ntoacts from which an inference of abandonment should be drawn 

EXPRESS RELEASE

WHAT DO THE FACTS SAY> DOES IT SPECIFIY A SPECIFC TIME OF NON USE???  The dominant owner may expressly release the servient owner from the easement  Although a deed is required at common law to effect a valid release, equity on the usual principles will give effect to an informal release



ALTERATION TO THE DOMINANT TENEMENT

 

 

UNITY OF DOMINANT AND SERVIENT TENEMENT

Mutual agreement between the parties will bring an end to easement If the dominant tenement comes to assume a very different character, the easement comes to an end Excessive use of an easement may leas to its extinguishment Eg conversion of agricultural land to a camping site was held to cause excessive use of the land - Jelhert v dais

S 181 D  If one person acquires the fee simple estate in both the dominant and servient tenements, and is in possiession of both tenements, the easement is normally extinguished at common law  However, in margil pty ltd v stegul pastoral the burdened and benefited land came into the hands of a single owner but the easement was the only means of access from the benefited land  The easement was held to continue into existence  Unity of ownership or possession does not cause to disappear a right of way where that way or other easement is necessary to the use of the land 

EASEMENTS AND THE TORREN SYSTEM 



PARTIAL EXEMPTION TO INDEFEASIBILITY IN FAVOUR OF

 

Easements over land under the torrens legislation may be expressly granted by registration of an instruments in the appropriate form and expressly reserved in an instrument of transfer by which the land is transferred If the easement is not registered on the certificate of title of the servient tenement the question arises as to whether the indefeasbility principles operates to defeat it S 185 (3) excepts from the operation of the indefeasbility provision: the interest of a person entitled to the nefit of an easement if its

OMITTED AND MISDESCRIBED EASMENTS ENFORCEABILITY OF EASEMENTS THAT DO NOT COME WITHIN THE EXCEPTION

particular have been omitted from or misdescribed in the freehold land register  



The fact that an easement does not come with one of the statutory exceptions to indefeasibility is not fatal to enforceability A distinction must be drawn between unregistered express easements and easement which arise by implication or prescription

Unregistered express easments  In the case of express easements whether created by document so as to come within the doctrine of walsh v Lonsdale or by equitable doctrines suc has acquiescence or e stoppel if they remain unregistered they will be vulnerable to the registration of a subsequent proprietor without fraud 

PRESCRIPTIVE EASEMENTS

Unresigstered implied easements  Implied easements under the rules in Wheeldon v burrows if not always exceptions to indefeasibility may still operate between the parties to the transaction on an in personam basis   The provisions in torrens legislation preventing or restricting the acquisition of the title by adverse possession may have some relevance 

RESTRICTIVE COVENANTS  

 

 

the area of restrictive covenants is where contract intersects with property law often originally created by deed by the original land owner and are binding on the parties to the covenant that is the original covenantor and covenantee they contain requirements which are imposed on future owners of the land which restrict its use in this sense they are proprietary in nature some of the most common restrictive convents which survive today are covenants which restrict the number of dwellings which can be constructed on parcel of land

WHAT ARE THEY

The original document which created the covenant usually lists the titles which benefit from the covenant / promise in the deed of covenant. Restrictive covenants can be modified or discharged by way of application to a court. The area is unnecessarily complex in states which do not permit registration of restrictive covenants on certificates of title.   Often described as restrictive covenants; or, more generally covenants which impact or affect freehold land or alternatively freehold covenants.  All basically the same thing but restrictive covenants are negative obligations/covenants which restrict the use of freehold land in some way.  They are the most common type of covenant dispute  New subdivisions will have positive covenants.  This area overlaps with planning and contract law  So a covenant is a positive or negative promise which impacts the use of freehold land.  For example:  Maria (M) owns a two story house on lot 1 which overlooks a park. However, Bruce the owner of lot 2 is in between lot 1 and the park. B has a single level house. M covenants with B (via contract) to not build in front of M’s house so the views of the park are blocked. M pays B $10,000 for this promise. They both sign and date the document in the form of a regular agreement/contract.  This is an easy example of covenant (restrictive).  M is the Covenantee – the person who the promise is given to; that is, the dominant or beneficial lot owner  B is the Covenantor – the person who makes the promise; servient or burdened lot owner  Binding on M and B because of contract principles (privity)  BUT what about successors in title? Remember contract does not apply to them unless the interest is assigned or the Trident v McNiece principle applies (1988) 165 CLR 107 (contract case recognises rights of a third party)





ESSENTIAL CHARACTERISTICS



 



CREATION

• • •

ENFORCEABILITY AGAINST SUCESSIVE OWNERS

•

• •

ENFORCEABILITY

•

•

The law in this area is mainly about how successors in title can either, (1) enforce the benefit (dominant) of an earlier covenant entered into by previous owners or, (2) whether, they can remove the burden (servient) of the obligation created by the covenant. So (going back to the previous example) - can the successors in title who purchase the properties owned by M or B be bound by the agreement entered into earlier by those parties? Covenants of this nature are not considered proprietary unless certain conditions are met. It must pass the test that it touches and concerns the land (run with the land) They also are not registerable under Torrens in Qld. Other states and territories record them on title so as to give notice to successive owners but it is not equivalent to obtaining the status of indefeasible title So it is equity which enforces these interests By Deed but this is not necessary in Qld. So it is sufficient that it be in writing. In the past it was often included in a contract of sale document Can be created when plan of subdivision is registered. See s 49 PLA Covenants which affect freehold land cannot be registered. In Qld they cannot even be recorded on title unlike other jurisdictions (e.g. Victoria) So they are not legal interests. Equity has devised principles to enforce these promises where there are successors in title involved. The common law has long recognised that the benefit of these covenants can be passed to successive owners. However, the burden is not recognised beyond the immediate agreement.

BENEFIT PROTECTED

•

• •

• • • • • •

•

• •

The common law has recognised principles to enforce the benefit of a covenant against successors in title (3rd parties) This is called the annexation principle The original covenantee can also assign the benefit to another party. It depends on the interpretation of the original agreement. See s 199 PLA Then there is ss 13, 55 of the PLA. Both these sections recognise 3rd party rights. COMMON LAW; Annexation of the benefit to the land Covenant touches and benefits the land Requisite intention exists that the covenant runs with the land: s 53 PLA s 53 implies the intention once it is established that the covenant touches and concerns the land. The covenantee (the original party) held a legal estate to the land at the time the agreement was created. The benefit of the covenant then becomes annexed to the land and can be passed on. See Rogers v Hosegood [1900] 2 Ch 388 at 407

PLA RECOGNITION OF 3RD PARTIES; – S 13 PLA • Applies to protect the interests of beneficiaries to enforce a benefit where they are not named as a party in the original document creating the benefit. – HOWEVER • It must be clear from the terms of the original agreement that the intention was to grant an interest to them. • The third party does not need to formally accept the benefit. • The case of Bahr v Nicolay is an example. The Bahrs were not a party to the contract which sold the land to Nicolay but their interest which was a benefit was expressly mentioned. • Another example, A has an agreement with B to sell her

property to B. The contract of sale contains a clause “that B agrees with A & C to use the property for residential purposes only.” RPLIQ [17.100] 896. See Ecclesiastical Commissioner for England’s Conveyance [1936] 1 Ch 430. Overlap with s 55 • S 55 PLA “is similar in operation to section 13… Both sections modify the law with respect to privity of contract. However, the main difference between section 13 and section 55 is that section 55 requires acceptance of the benefit by the third party by words or conduct, communicated to the promisor. • Further, section 13 of the PLA relates to a third party to a contract taking an interest in land, or the benefit of any condition, right of entry, covenant or agreement in respect of land. Section 55 of the PLA is broader and relates to benefits to third parties to contracts generally. • Finally, section 13 makes no reference to the requirement of consideration, where section 55(1) requires consideration to move from the promisee to the promisor.” Commercial & Property Law Research Centre, QUT, 2018 Property Law Review Final Report Property Law Act 1974 (Qld), [58.1.1] 371. IN EQUITY • What if one of the previous requirements relevant to the application of the common law is not present then does the benefit of the covenant not pass? – No, equity steps in here. • Annexation principle under equity: – The covenant must touch and concern the land of the covenantee (benefit land) – same considerations as common law. – There must be an intention to annex the covenant to the land, where covenants created after 1/12/75 s 53(1) applies. Same considerations as common law – Land which benefits must be able to be identified (ascertained) by the terms of

the covenant. This is an issue of certainty in the description of the covenant. ENFORCEABILITY OF BURDEN OF COVENANT • The common law does not enforce burdens against third parties. – Example, Maria (M) owns a two story house on lot 1 which overlooks a park. However, Bruce the owner of lot 2 is in between lot 1 and the park. B has a single level house. M covenants with B (via contract) to not build in front of M’s house so the views of the park are blocked. M pays B $10,000 for this promise. They both sign and date the document in the form of a regular agreement/contract. – B sells his property to Paul (P) he puts a town planning application to knock down the existing dwelling and build a two story house to take advantage of the views. – Can M. do anything? – At common law or even under statute NO – Over the years there have been many ingenious devices developed to overcome this difficulty. – For example, “creating a chain of covenants”. It obliges each successive owner to include in the contract of sale of land a covenant that they will comply with the negative covenant. IN EQUITY; • Equity will enforce a restrictive covenant applying to successors in title in certain circumstances • Tulk v Moxhay (1858) 2 Ph 774; 41 ER 1143. (a) Covenant must be negative; (b) Covenant must be made for the purpose of protecting the land of the covenantee (benefit); (c) Burden must have intended to run with the covenantor’s land (burden); (d) Equitable remedies apply. RPLIQ [17.230] p 911

REMEDIES INJUNCTION DAMAGES

TERMINATION/EXTINGUISHMENT...