Easements and restrictive covenants (wk 8) PDF

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land law - easements...

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EASEMENTS AND RESTRICTIVE COVENANTS EASE ME NTS An easement is a non-possessory right that runs with the land; successors-in-title (persons it is sold to) are bound. It is registrable. No exclusive possession – give rights to use somebody else’s land If a land is benefited by an easement and the land is sold the benefit will also run with the land – the new owner will get the benefit of the easement (seller no longer gets benefit of easement) If the land has Common examples: -

right of way (easements of way) – allows person to go on someone else’s property to access your property or road etc drainage easement (service easements) – allows person to use land in certain way to access things for their property

Can be positive or negative -

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positive: right to do things on neighbour’s land eg right of way – [gives owner of dominant tenement – the person who gets the benefit of the easement (servient tenement is the land that has to accommodate that right)] tenement is another word for land negative: right to prevent neighbour from doing certain activity on own land eg easement for light

Registrable - appears on title of both dominant and servient land four elements of an easement (Re Ellenborough Park) 1. There must be a dominant and servient tenement (two nearby plot of land) – near each other usually next to each other 2. The easement must accommodate the dominant tenement (benefit the dominant tenement and not a person) – for the benefit of the dominant tenement not land 3. Dominant and servient tenement must not be owned and occupied by the same person (Torrens legislation creates an exception to this) 4. The easement right must be capable of forming the subject matter of a grant (not vague, uncertain or merely recreational) – defined Developed from Hill v Tupper but came from Re Ellen Hill v Tupper - exclusive right to hire out pleasure boats not an easement as didn’t benefit the land -

company owned some land that included a canal. P leased some land adjacent to the canal and the lease said P had sole and exclusive right to put boats on the canal and lease them out. D lived next to and also put boats on canal. P brought action against D (under lease – unable to show canal was part of leased land because they did not have exclusive possession) – easements – couldn’t find P had proprietary right – only a licenece granted from landlord to tenant – binding only between them – had no action in his own name – if P had had proprietary right he needed to show that an easement had been created – couldn’t be case here as wasn’t for benefit of dominant tenement

Re Ellenborough Park - use of a pleasure ground could be subject of an easement -

owner of large portion of land divided it into lots – one lot Ellenborough Park for enjoyment of others purchaser in other lots granted an easement to access the park in exchange for fees for its maintenance – during the war the war office took over the park and it couldn’t be used by land owners- the office paid the trustees of the park a yearly rent and money to compensate – question was whether trustees had to share money with land owners of individual blocks – whether land owners had any right enforceable for use and enjoyment of park (traditional owner not alive – no licence as licence is a personal right – would have been extinguished when transferred) – owners said easement had not been created because easement did not accommodate the dominant tenement and they were not next to the park – said it was like attending ground for free – court held each owners of lots had an easement over park – the park was a communal park for those whose houses were nearby – test of connection should be satisfied use of garden adds to enjoyment of park –

statutory exceptions to requirements of an easement RPA s 90C – Dominant and servient tenement may be owned and occupied by the same person (under Torrens) Easements for public utilities may be created by statute and don’t need a dominant or servient tenement. Known as easements in gross – eg property can have an easement attached for person next to public utility for electricity etc 1. There must be a dominant and servient tenement Based on idea that an easement over one land must benefit another land in the near vicinity – must have proximal relationship -

Proximal relationship between two plots of land Usually adjoining but don’t need to be (eg Re Ellenborough Park)

No easement in gross allowed under common law -

Note statutory exceptions to easement in gross

2. The easement must accommodate the dominant tenement The dominant tenement (and not a person) must benefit from the easement - has to be connection between easement and dominant tenement Rights unconnected with the use of the dominant cannot be annexed to the land – has to be natural connection and the right must be reasonably necessary for the enjoyment of the dominant land -

Compare Hill v Tupper with Re Ellenborough Park H v T: didn’t accommodate dominate land E: pleasure land did

Clos Farming Estates v Easton -

Clos was land developer with large area of land that was divided into many lots Independent business exercise could not be annexed to the land and didn’t benefit the particular piece of land – sold off lots and kept one lot for themselves – the plan covering the development was registered – noted a restriction that said easement for vineyard – allowed Clos to enter into every other lot and carry out viticulture work and sell the grapes – deduct own costs of harvest and selling and then distribute the proceeds of sale back to the owner – the benefited land was said to be lot 86 – the servient were all the other lots.

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allowed all owners of various lots to operate combined wine production and sell through Clos – clos later lodged caveat over all lots to protect right for vineyard – grape farming operation stopped – Easton was a lot owner and took steps to have caveat removed – Clos claimed it was good – Easton cross-claimed that easement was not valid – trial judge and appeal satisfied that first and third requirements were met – however second and fourth could not be found – did not accommodate dominant and subject matter not capable of forming subject matter of grant Easton acknowledged that right that carried out trade on land may be a valid easement – fact that it is a business operation doesn’t exclude easement – only if conduct of trade is necessary for enjoyment of land and not an independent business venture not connected with land (this was the case here) lot 86 was not benefited by being allowed to grow and harvest grapes from lot 27 – any supposed connection between lot 86 and lot 27 – no natural connection between the lots pure commercial interests in themselves not sufficient to justify easement There must be a natural connection between the dominant and servient tenements and the right must be reasonably necessary for the enjoyment of the dominant tenement - not enough that land is convenient incident to the right

Frater v Findlay -

right must be reasonably necessary for enjoyment of land if no connection – although makes land more valuable – is nothing more than personal contractual right

reasonable necessity just means reasonable to facilitate enjoyment of right: McGrath v Campbell 3. Dominant tenement must not be owned and occupied by the same person No-one can acquire rights against him or himself – cannot be owner and occupier of both properties – abolished by RPA At common law must be separate ownership and occupation of dominant and servient tenements: Harada v Registrar of Titles -

Both tenements must be owned and occupied by the same person

Rule can operate to extinguish easement if single person both owns and occupies RPA s 90C abolishes this rule for Torrens land -

person may be registered owner of both dominant and servient land may grant an easement to him or himself easement will not merge unless conveyance expresses that intention

4. Easement right must be capable of forming the subject matter of a grant Must not be too wide or vague or constitute mere rights of recreation, thereby possessing no quality or utility or benefit (Evershed MR, Re Ellenborough Park) -

has to be well defined and commonly understood

May be contrasted with jus spatiandi rights (wander at will) -

cant be subject matter of easement

Is being able to use a pleasure ground mere rights of recreation? – not a right having no utility or benefit – benefits surrounding houses and constitutes pleasure and enjoyment of around houses – not mere wandering at will right – private garden attribute of residents it relates to Can accommodate a business: Moody v Steggles For an easement to exist it must facilitate conduct of business on dominant tenement: Hill v Tupper Right to a view was held to be too vague: Palmer v Board of Land of Works Right to undefined flow of air and light was capable to rank as an easement: Cth v Registrar of Titles (Vic) (1918)

Creation of easements Easements can be created in four different ways: 1. Express grant or reservation Any person may grant or reserve an easement so long as a grant is consistent with their proprietary interest. -

GENERAL LAW: An express grant can only be conveyed by deed (LPA s 28(1)) equitable easements are also possible: Walsh v Lonsdale TORRENS SYSTEM: Can register an instrument that creates an express grant (has effect of deed): RPA s 57(3) failure to comply with statutory requirements may still give rise to equitable easement: Barry v Heider COMMON LAW: no easement can exist by reservation unless a conveyance, containing a reservation, is executed A mortgagee exercising a power of sale may grant an easement (LPA s 47(1)(a)). creation and transfer of an easement must be executed in the appropriate form: RPA s 96

2. Implied grant easement created through conduct (where subdivided land) -

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rule in Wheeldon v Burrows – transferring part of your land to someone will include passing the ‘continuous and apparent’ easements you enjoyed, necessary to the reasonable enjoyment of the property (easement will be implied) Note: vendor has every opportunity to reserve rights when selling land and it would be to derogate from grant if an easement is later implied: Wheeldon v Burrows based on principle that you can’t derogate from grant ‘continuous and apparent enjoyment’ In Ward v Kirkland, P claimed right to go onto land to maintain wall of an adjoining farmhouse (served as boundary). The wall could only be maintained by entering farmland. It was held that there was no implied grant as there was no feature seen on inspection that was neither ‘transitory not intermittent’ there must be a physical indicator

general words imported into conveyances

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not recognised under Torrens look at Price and Aus Hifi cases eg in International Tea Stores v Hobbs: P leased land and could cut across other land as path. He then purchased the property he was leasing and although there was no mention of an easement, it was implied

necessity -

where easements created for necessity eg land blocked from road (undecided whether easements of necessity can exist under Torrens) a bona fide purchaser for value of a servient tenement remained subject to a pre ‐existing easement of necessity: Pryce and Irving v McGuiness In Bolton v Clutterbuck, the Court held that a new staircase and wall could be built; they did not have easement to use staircase In Titchmarsh v Royston Water Co, alternative access could have been created by building a very expensive road – so no easement HOWEVER, there may only be reasonable necessity not absolute necessity: Torrisi v Magame

common intention -

parties show they intend easement to be created for a particular and defined purpose: RJ Finlayson Ltd v Elder Smith & Co Ltd; Beck v Auerback eg. Re State Electricity Commission (Vic) and Joshua’s Contract: Intention of purchase was to build a power station. They sought an easement that P was permitted to make noise and vibration overi neighbouring land (owned by D). Easement because it was implied from the circumstances under which contract for sale was made

manner of description

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a party was not permitted to derogate from the terms of the grant: Taylor v Browning

Prescription -

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An easement by prescription may be created where a proprietor has enjoyed and exercised a right over adjoining land continuously, peacefully and for a long period of time: Delohery v Permanent Trustee Co of NSW long user -someone using land as if they had easement right – if been going on for more than 20 years in open and uninterrupted way: Golding v Tanner (Aus law may recognise); The prescription Act UK (SA – operative)

Statute or court order -

court can create easements in favour of government authorities

Any easements unregistered – they have to fit into exceptions of indefeasibility Termination of easement Registrar has right to remove easement -

By agreement (see RPA s 90B) By abandonment By merger – unity of seisin (not under Torrens) By court order of extinguishment (or Registrar under SA Torrens)

RESTRI CTIVE COVENANTS A promise or undertaking not to do something Covenant that restricts the use or enjoyment of land for the benefit of other land eg covenant not to build higher than 2 stories Binding on every successive owner of the burdened land with notice of the covenant Right recognised in equity only (since mid-nineteenth century) -

to overcome rigid common law rule that burden of promise cannot be enforced against any person except the OG person Neighbouring land owners can enter into any agreement they like but if one party sells their land to another – the new owner cannot enforce OG covenant because of privity Circumvents privity of contract in limited circumstances eg want to prevent neighbour building structure that would block view equity will not enforce a covenant against a successor in title if it obliges them to spend money – doesn’t compel you to do something

Contrast with freehold covenants (cannot be enforced against successors-in-title) -

normal covenants – agreement – where parties are bound free to do whatever – only enforceable against OG owners

Covenant is personal in nature – attaches to covenantor and covenantee -

under common law covenant will not be enforceable by successor in title – equitable rules – covenant can remain in place to protect C – may be entitled to benefit of covenant even though they weren’t party to agreement

Sometimes same obligation can be imposed as covenant or easement -

eg easement of light or covenant restricting height of building covenants have been referred to as negative of restrictive easements often covenants reverted to where easement will not be recognised often resorted to where type of right that will not be recognised as an easement

Relationship to easements -

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Tulk v Maxhay equitable extension of law of easement and although they sometimes overlap, easements exist both at law and in equity P owned vacant parcel of ground in Long along with houses forming square – sold part saying ‘pleasure ground’ – sold to Elms who agreed not to develop the pleasure ground – maintain as garden – undertook on basis of himself and heirs and assignees – land eventually came to Moxay who knew of covenant – wanted to build on it – Tulk the OG owner still owned some lots and didn’t want land to be developed – should he be able to use land in a manner inconsistent with OG contract with which he had notice – House of Lords said it was enforceable – price would be dependent on covenant – unfair that he should buy at low price and sell next day and make money bc they would not be bound no one can stand in different position to party from which he purchased

Cannot be registered (equitable interest only) Restrictive covenants and Torrens

Some jurisdictions authorise Registrar to issue notice of restrictive covenant on title- cannot rely on indefeasibility to beat restrictive covenant – notifying covenant on title does not convert it to a legal interest Other states – including SA – no provision in RPA that allows restrictive covenant to be noted on title Cannot be registered (equitable interest only). No indefeasibility Some jurisdictions allow Registrar to enter notification on title on burdened land RPA (SA) does not allow notification of restrictive covenants – equitable interest Only appropriate protection for restrictive covenant is caveat over burdened land – can be lodged by any person claiming to be protected at law or in equity

Freehold covenants and common law At common law, burden of a covenant cannot pass to successors-in-title Benefit of a covenant can pass to assignee if: 1. the covenant touches and concerns the benefitted land; 2. the estate of the assignee is a legal estate; and 3. (in SA only), an assignee must have the same legal estate as the covenantee (abolished in other jurisdictions) Covenant must touch and concern the land -

cannot be of a personal nature, must benefit the land

Burden of freehold covenant cannot pass to assignee of covenantor -

Austerberry v Corporation of Oldham they formed a company for the purpose of making a road – conveyed part of the land to the road people – 4 bits of land and one communal road – Elliot was a land owner – trustees of company covenanted with Elliot and heirs to make and maintain road at company’s expense and keep it under repair – maintained it until taken over by Oldham – Elliot also sold on to Austerberry – both had notice of covenant – Oldham said they didn’t want to pay for maintenance – sought to recover cost from landowners – A bought an action – CA considered whether the covenant touched the land – found it did not – simply a covenant to repair whole road – no distinction between different parts of road /land – didn’t relate to land – second consideration – could burden of covenant run with land so as to buy odham – cannot – no case that establishes a burden can run with land – mere personal covenant – positive covenants unenforceable

Freehold covenants and equity Burden of a covenant may run with land so long as covenant is restrictive and touches and concerns land and with burdened person has notice of it Tulk v Maxhay: -

‘Nothing could be more inequitable than the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability, which he himself had undertaken’

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No-one purchasing with notice of an equity can stand in a different situation from the party from whim he/she purchased

Contrast equity position with common law position Will a successor-in-title be bound? TEST: 1. Covenant must be restrictive, negative in nature 2. Burden must be intended to run with land of covenantor – personal covenant that does not attach to the land will not run with the land. 3. Must be expressed to be for the benefit of the covenantees land (and not covenantee personally or world at large) 4. Successors-in-title must have notice of the covenant to be bound by it In equity both the burden and the benefit of a covenant may run with the land so long as: •

The covenant ‘touches and concerns the land’;

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The covenant is restrictive in nature;

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The covenant must be expressed to be for the benefit of the covenantee’s land; and

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The person burdened had notice of the covenant at the time their interest was created

Tulk v ...