Property Law Week 10 Lecture Notes PDF

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Property Law Week 10 Lecture Notes Easements ! Definition of an Easement : ! - Classified as an ‘incorporeal hereditament’ - it means easements are a type of real property, the interest was hereditary (like a fee simple), but the interest is not one of exclusive possession. It is a more limited right to use land of another person. ! - Easements may be ‘positive’ (e.g. a right to enter another person’s land to do something) or ‘negative’ (e.g. a right to prevent something being done on someone else’s land - such as block light or air). ! - No longer possible to make new categories of negative categories; on the other hand, the categories of positive easements is not closed; you can create novel easements so long as they come with the general characterises and requirements that both common and statute law have set out for easements. ! - ‘A right annexed to land to utilise other land of different ownership in a particular manner (not involving the taking of any part of the natural produce of that land or any part of its soil) or to prevent the owner of the other land from utilising his land in a particular manner’. ! Terminology : ! - Dominant tenement (‘DT’) has the benefit of the easement. ! - Servient tenement (‘ST’) has the burden. ! - The DT has a ‘right of way’ over the ST. ! - Other key words ‘ appurtenant’ – a right attached to the land Note the RIGHT ATTACHES to LAND not the person – think of a right of way – I don’t have the right in my personal capacity but as the owner of the DT. The right ‘runs’ with the land not with the individual who owns the land. ! Distinguishing Easements from Other Interests in Land : !

- Leases - grant of exclusive possession! - Licenses - not proprietary, do not need same formalities, can exist in gross (i.e. don’t need a -

dominant tenement), and can have a licence to a general right to occupy, e.g. a room in a house). ! Profit à prendre (right to hunt, fish, take resources from the land). ! Restrictive covenant (restricts owner from doing something on their land; can look like a negative easement - but has a very different basis as an equitable doctrine). !

Easements - Essential Characteristics ! What are the Substantive Characteristics of an Easement? : ! 1. Dominant and servient tenements (note; this has been amended by statute)! 2. Easement must ‘accomodate’ the dominant tenement! 3. Dominant and servient tenement must be owned or occupied by different people (again, note some statutory modifications)! 4. The right must be capable of forming the subject matter of a grant ! - Re Ellenborough Park 1956. ! 1. Dominant and Servient Tenement : ! - Dominant tenement may consist of a combination of corporeal and incorporeal hereditaments (e.g. another easement). ! - Identification of the dominant tenement in the instrument creating the easement is required! - At common law; if document referred to DT but did not specifically identify it; could bring evidence to identify the DT; Gas & Fuel Corporation of Victoria v Barba 1976. ! - Conveyancing Act 1919, s88(1) - provides that the instrument creating the easement must ‘clearly indicate’ the land burdened and benefited (applies to Torrens Land). However the statute law overrode the common law and outlined that the instrument must identify the easement - however this only applies to enforcing an easement to a party who wasn’t originally a part to the easement. As between the original grantor and the grantee of the easements these easements do not need to comply with this section. ! - Gas & Fuel Corporation of Victoria v Barba [1976] VR 755 P has option to to acquire a pipeline easement from V (but payment not made). V then sells to the Defendant. Issue,

Property Law Week 10 Lecture Notes what was the DT? No land identified in the option Crockett J NO EASEMENT IN GROSS P argues: 1. DT can also be an incorporeal Property – and certainly of both. Eg could grant an easement over another easement (in this case easements in relation to other land for the pipelines) PLAN NEED NOT BE CONTIGUOUS – earlier authority cited re water authority p 951 ON ISSUE OF IDENTIFICATION – and extrinsic evidence – Could be done here. See Gapes v Fish at 10.5 ‘Saving and reserving a right of way 24 feet wide running along the southern boundary of the land above described for him the said vendor his heirs and assigns at all times to pass over and along the same’ [text 10.5] ! Can you Create an Easement in Gross (Meaning without a DT)? :! - Not at common law; Ackroyd v Smith 1850; right to use a road to pass and repass ‘for all purposes’ was held to be a licence rather than an easement (because the right was not connected to the use of another land (the DT). The right must be connected with the use of the DT land (‘appurtenant’ or ‘annexed’ to the land). ! - HOWEVER, it is now possible to create an easement in gross by statute - especially in relation to easements in favour of the Crown pr public authorities e.g. for utilities (s88A Conveyancing Act 1919). ! 3. DT and ST must be Owned or Occupied by Different People : !

- General principle is that you can’t acquire rights against yourself. ! - But you can have same RP but different occupiers - e.g. where a tenant is in possession may acquire an easement over land belonging to the landlord. !

- Note; statutory modification of the general principle (e.g. s88B Conveyancing Act 1919; s46A -

Real Property Act 1900) - to allow for the creation of easements on land owned by the same person. ! S 88B refers to lodging plans with the RG noting easements to be created. s. 46A now allows creation of easement by registration where same owner !

Re Ellenborough Park [1956] Ch 31 : ! - Subdivision in 1855 D and W transferred lots and retained inner portion. ! - Granted easement to lot holders to use the park and contribute to cost of maintenance. ! - Original Estate called White cross Estate Parties were all successors in title from original grants in the middle of the 19th century. Was also issue of compensation paid by the war office to the park owners – for requisition during the war. Plaintiffs – the owners of the park (held on trust). First defendant Mrs Maddison one of the beneficiaries (and the appellant). Issue was whether the house owners have an easement in respect to the Park. Concerned with 2nd and 4th elements of easement: Does the easement ‘accommodate’ the dominant tenements (is the required connexion there)? ARE THE RIGHTS Capable of forming the subject matter of a grant. ! 2. The Easement must ‘Accomodate’ the DT : ! - In Re Ellenborough Park:! - Must be a nexus such that the dominant tenement benefits from the easement (not just a personal benefit). ! - Right of enjoyment connected to the ‘normal enjoyment’ of the dominant tenement. ! - If right confers benefit on the owner only, then cannot be an easement - although might be a licence (e.g. Hill v Tupper 1863).! - DT and ST need not be contiguous. ! - Rights may incidentally benefit others unconnected with the dominant tenement. ! - Right to use a garden was considered as a benefit to the DT to enjoy the property. ! - Original grant – that property conveyed for residential (not commercial) purposes. Park was to be kept and maintained as a pleasure ground or ornamental garden Examples that wouldn’t be easements – eg. To use the zoo or the cricket ground for nearby owners But – the use of the garden – as normally connected with enjoyment of the house. So considered the requisite connection was ‘amply satisfied’ [text at 959] SEE ALSO CLOS FARMING ON THIS REQUIREMENT ! Re Ellenborough; Does the Easement Accommodate the DT? : ! - Is there sufficient connection to the ‘enjoyment’ of the dominant tenement?! - It is relevant if the right enhances the value of the DT but not decisive. !

Property Law Week 10 Lecture Notes - Question of fact - based on nature of the dominant tenement and the nature of the right granted. !

- Sufficient nexus here? - the use of a garden is normally connected with enjoyment of residential house - so accommodation requirement satisfied. ! Clos Farming Case : ! 1. Did the rights accommodate the dominant tenement?; ! - Must show a natural connected between DT and rights claimed in ST! - Are the rights connected with the normal enjoyment of the DT?! - Easement may benefit trade conducted on the dominant tenement but the trade must be a ‘necessary incident to the normal enjoyment of the land’. ! - There was no ‘natural connection’ between the rights claimed and the DT. BENEFIT TO BUSINESS – was acknowledged that could have a valid easement in certain circumstances – if the conduct of the trade is a necessary incident to the normal enjoyment of the land, not merely an independent business exercise’ – this was accepted by the Court Distinguished example of public house and posting a signboard on neighbour’s land. See Moody v Steggles referred to in para 32. That here the house was only used as a public house and the easement was connected with the mode of use. ALSO NO EVIDENCE THAT THERE WAS ANY accommodation or advantage of lot 86. This was more like Hill v Tupper – a convenient incident. Can’t be merely an independent business enterprise para 34. Rights can not be so extensive that the deprive ST owners of proprietorship or possession ST owners are left with rights only to residual recreational activities and in effect are deprived of their rights of exclusive possession The claimed easement failed both the 2nd and 4th requirements. ! 4. Are the Rights Capable of Forming the Subject Matter of the Grant? : !

- Too wide and vague? ! - E.g. in Re Ellenborough Park, the right was well defined and commonly understood; not jus spatiandi.!

- Cannot be too extensive - Would the rights deprive the owners of the servient tenement of -

proprietorship or possession? (Do the rights amount to joint occupation? Would not be capable of forming the subject matter for an easement - See Clos Farming). ! Rights or recreation (cannot be an easement) - any utility or benefit?; ! Distinguished Mouncey v Ismay - horse race.! Garden is for pleasure but also benefits the house. ! Jus spatiandi – a privilege of wandering at will over another’s field or park – as a personal licence. The nature of the rights not inconsistent with proprietorship. Gave example of use by the public of gardens in lincoln’s fields – would not suggest joint occupation or involve inconsistency. Compare with Copeland v Greenhalf, where claimant was a wagon repairer and was leaving vehicles on the land whilst waiting repair – and sometimes repaired there. That the claimant was seeking the right to occupy a part of the land for the purpose of his business. In effect, was claiming the whole beneficial use of the strip of land. Ie. More like adverse possession than an easement. In Mouncey – no dominant tenement, but the nature of the right itself not like a right of way or right of watercourse. Not a right of ‘mere recreation and amusement’. That it is not just a right to wander at will (where wandering at large ‘is of the essence of such a right and constitutes the main purpose for which it exists’ – p. 180. A private garden is different. !

Clos Farming Case : ! - Purchase agreement purported to create an easement (‘Easement for Vineyard’) to benefit Lot 86 and burden Lot 27. ! - Right to enter with or without vehicles, farming implements and machinery onto Part B to;! - Establish vineyards, plant and replant grape vines and crops, plant and harvest grapes, sell the produce. ! - Deduct from proceeds of sale and retain the costs of farm maintenance, harvesting, packaging, freight agents’ commission, marketing and reasonable administration costs associated with harvesting and sale of the harvest. ! - These weren’t considered as too vague but they were considered to be so invasive of the rights of the servient tenement owners that it deprived them of the general incidents that you would expect from proprietorship or possession. In effect the servient tenement owners would be left

Property Law Week 10 Lecture Notes -

with very residual rights to use and access their land. Therefore, it was clear that these rights could not meet the fourth requirement as established in the Re Ellenborough Park case. ! LOT 86 6 supposedly the DT and all the other lots ST Plan of the estate registered by Land Titles Office NSW. The instrument set out a number of restrictions. 14th Restriction was the ‘Easement for Vineyard” – the purpose was to allow the owner of Lot 86 to enter the ST and carry out grape growing, harvesting and selling etc. Respondents – became RP of Lot 27 on 20 September 1989 Contracts were supporting the Restriction Contracts for Farm Maintenance Agreement – expired in 30 June 1992 Contracts for ‘Grape Sale Agreement’ – expired in 30 June 1998 CLOS FARMING HAD LODGED A CAVEAT in July 1995 which the respondents were seeking to have removed (they applied for removal in April 2000) !

Other Interests Claimed in Clos Farming : ! - Profit a prendre - rugbys to take something off another persons land such as their resources. Again, rights claimed too extensive. ! - Profit a rendre - right or obligation to enter land and put something there of benefit to the land. ! - Licence coupled with a grant? ! - Some new category of property?! - Recall the ‘form’ versus ‘substance’ issue - calling a right ‘property’ doesn’t make it so. ! - So consider again the nature of property rights and fitting within the general categories. This was a type of business venture with right to sell the produce and deduct from the proceeds of sale the costs associated with the harvest. Note the consequence of recognising as property – potential to bind third parties/successors in title. ! Summary of Types of Easements : ! - The categories of (positive) easements are not closed, but need to consider whether it meets the essential characteristics. Examples of ‘novel’ easements recognised include; ! - A right to park vehicles! - A right to use a toilet on the ST! - A right to bring goods in through the man door of neighbouring shop! - Not recognised; ! - A right to hit cricket balls over neighbouring property! - A right of protection from weather! - A right to spread noxious wastes in indeterminate quantities. ! How are Easements Created? (The Formalities Issue) : ! - Reservation; Express, Implied ! - Grant; Express, Implied! - Statute ! - Prescription (doctrine of lost modern grant) - not examinable. ! Grant and Reservation : ! - V originally owns Lot 1 and Lot 2! - Grant; V sells Lot 1 to P and gives (grants) P a right of way over Lot 2. ! - Reservation; V sells Lot 1 to P and sale subject to V’s right of way over Lot 1. ! - A grant – a transfer of a proprietary right to someone else ! - A reservation – you reserve a proprietary right for yourself ! Express Grants and Reservations; Formalities : ! - Like other interests in land, easements can be created in law or equity. ! - LAW! - On transfer of land, Torrens requires registration in the approved form RPA s46. ! - 47(1) RG records the interest on relevant folios. ! - S88B(3) registration of plan of subdivision. ! - General law - by deed (CA s23B)! - EQUITY ! - Evidenced in writing (CA s23C, 54A) or; ! - Specifically enforceable agreement for easement! - Exception to writing requirement - part performance (CA s23E(d), 54A) - also estoppel. ! - EASEMENTS ARE AN INTEREST IN LAND and so the general rules about formalities apply – as we have discussed in relation to transfer of land, leases and mortgages. Remember that this

Property Law Week 10 Lecture Notes also applies to equitable interests – Conveyancing Act Unless there is an exception. The rule is Walsh v Lonsdale (re leases) can be applied to other interests: Buccholz v Kempsey Shire Council: Case of parking in front of holiday flats, arrangements made when Council was fixing the roads/verge to accommodate the practice. There was evidence of Council meetings in relation to the changes. Ie evidence given that the Shire engineer has said the tenants ‘would be able to continue to park their cars out the front’. Previous owners had discussed with council and had contributed to costs. SC then wanted to introduce 2 hour parking meters. ! Creation by Implied Grant or Reservation : ! - Under the rule in Wheeldon v Burrows! - By ‘general words’ (OST) s67 CA and s51 RPA. ! - Easements of Necessity! - Abutted easements; by description, e.g. words/diagrams describe land as abutting or adjoining a road or lane owned by the vendor. ABUTTAL – or by implication from the description of the land. Eg. Where the contract of sale or conveyance refers the land being “bounded by” or “abutting on”. ! - By common intention! - By doctrine of lost modern grant (long user).! Implied Grants - Wheeldon v Burrows : ! - Dealt with both implied reservation and implied grant. ! - Owner of two lots put each up for sale; a workshop and an adjoining piece of vacant land (with street frontage)! - Vendor presumed to intend to give full effect to the grant (in relation to reservation of easement to light)! - Applies to Torrens Land in NSW (but only between parties to transaction - e.g. if a third party becomes RP - takes free of prior unregistered interests (unless an exception). ! - Owner put up for sale a workshop and adjoining piece of land. Piece of land sold first. Which was then sold to another person A month later the workshop sold to another person. The workshop had windows overlooking and receiving light from the first piece of land. Vendor had not reserved access of light when he conveyed the first piece of land. So purchaser of workshop had no easement. Owner of first piece of land entitled to obstruct. It might have been different if sold at the same time. No implied reservation arose in this case. The action was one of trespass – brought by the Plaintiff the owner of the piece of land (who was building) The Defendant was claiming that he was exercising his right to prevent the obstruction to the access to light. Two pieces had come under common ownership in 1857. The two were separated by a wall (while under the same owner). The owner had built the workshop close to the wall. He had later raised the shed and installed windows (rather than skylights). The whole had then passed to a number of owners. Tetley advertised the sale in 1875. Wheeldon (the P’s husband) bought the piece of land’. The grant noted that the lot is ‘suitable for the erection of a factory or mill’ The other lot was later sold to Burrows. He claimed the easements of light were expressly or impliedly reserved to the grantor (and then to him). That there were ‘apparent, continuous quasi easements necessary to the continued enjoyment of the property But grantor must expressly reserve any right over land granted. Noting that there are certain exceptions – including those of necessity. Based on idea that Grantor should not derogate from his grant. ! Wheeldon v Burrows : ! - Implied grant: ‘.. On the grant by the owner of the tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course I mean quasi-easements) or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners for the benefit of the part granted’ Implied Reservation: Grantor must expressly reserve any right over a tenement granted (grantor not to derogate from the grant) ! - THE GENERAL RULES ARE STATED as ABOVE BASED ON THE RULE THAT THE GRANTOR CANNOT DEROGATE FROM THE GRANT Argument that no difference between implied grants and implied reservations However this was not accepted Implied Reservations Wheeldon v Burrows- generally not implied as should reserve for self in the transfer Ambiguity in the conveyance will be construed against the grantor (reservor) Exceptions- Easement of

Property Law Week 10 Lecture Notes necessity Parties have a common intention that the vendor reserves the easement And noted the difference where an owner might sell a house and retain a vacant block – that an implied grant will pass to grantee (not in the reading materials) ! Implied Reservation : ! - NOTE COMMON LAW RULE te...