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My summary of cheat sheets permitted to be taken into the exam : EXAM CHEAT SHEET- Easements.docx - EXAM CHEAT SHEET- Leases and residential tenancies.docx - EXAM CHEAT SHEET- Mortgages.docx - EXAM CHEAT SHEET- Personal Property.docx...

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Easement: A right annexed to land to utilize other land of different ownership in a particular manner (not McGrath v Campbell –law relating to implied easements over TT – A&B bought adjoining lots from common involving the taking of any part of the natural produce of that land or any part of its soil) [Halsbury]. Easements vendor, A had easement B didn’t, A allowed B to use in spirit of neighbourliness for 15 yrs, had fight, didn’t let are a type of incorporeal hereditament (not a physical right and heritable interest in land). Is something a valid easement?  Consider substantive/formal requirements. 4 essential substantive characteristics – from Re Ellenborough Park [1956] – that have received judicial approval: a. Must be a dominant and servient tenement (DT/ST - 2 pieces of land) b. Easement must accommodate DT (provide real practicable benefit)

B use easement (driveway) anymore. HELD – no implied easements – inconsistent with registered title over TT. - “It should be implied into the contract of sale from the common vendor to the purchaser of the servient tenement a term that the land being sold is subject to an implied easement in favor of the dominant

There must be some benefit to the land. A right benefiting some trade or business carried out on the land may be a valid easement, “but this is provided that the conduct of the trade is a necessary incident to the normal enjoyment of the land, not merely an independent business exercise.” In this case there was no real

tenement. The circumstances must be such that the probability that the implication of such a term was intended must be so strong that a contrary intention cannot be supposed.” - However the plaintiff can bring an action in personam for exception to indefeasibility  can argue that A relying on strict legal rights is unconscionable – not suitable in this case since there was no specific contract between A&B; the contract of purchase by A from original owner didn’t contain contractual term nor could you imply into a contract such a term since A never promised to grant an easement not unconscionable for them to say B can’t use it nor made a representation that would form the basis of an estoppel AND B was well aware of easement. Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] – whether an easement has been omitted within the meaning of s42(1)(a1). HC held  “when an easement has been previously recorded on the Register, but is no longer recorded because it has been deliberately removed from the Register, it could be said that the

connection between the vineyard business and lot 86 – it was used largely for storage. A purely commercial enterprise can’t be used to justify a right that is going to last forever – these lots of rights are better dealt with by contract. 4th requirement – right must be capable of forming the subject matter of a grant: Court had to ask 3 questions: 1. Are the rights expressed in terms too wide and vague in character?

easement was “not there”. It is more accurate, however, to say that the easement is “no longer there because it has been removed”. Registrar-General of NSW v Jea Holdings (Aust) Pty Ltd [2015] – whether easement can be considered omitted under s42(1)(a1) of RPA  said to be an omitted easement. Restriction on owner of servient land from doing anything to obstruct the owners of the dominant tenement from using the land of the servient tenement as a carpark – held it was a valid easement despite it covering the whole of the surface of the

2. Would the rights amount to rights of joint occupation or would they substantially deprive the owners of the servient tenement of proprietorship or legal possession? 3. Do the rights constitute mere rights of recreation (frivolous rights) possessing no quality of utility or benefit? Court said no easement but could be other types of interest – profit-a-prendre (right of taking) or profit-arendre (right to put on). Clos argued they have profit-a-prendre to take the grapes from the land but Court referring to Halsbury said – even though you have a right to take something from a land doesn’t allow you to go on it and perform agricultural/growing activities. Formal requirements: . Express grants/express reservations . Statutory easements . Implied grant/implied reservations . Prescription . Acquiescence/estoppel First ask whether the land is Old system or Torrens Title – if TT – is the easement registered? Express Grant/Reservation  Old system: Express grant/reservation – for legal easement deed required under s23B of C.Act 1919 or for reservation of an easement s54A C.Act. Torrens title: (legal) s46 and 47RPA 1900 provides for creation and registration of approved form on the folios of both dominant/servient tenements. Equitable easements: created same for OS & TT – 1 there’s writing complying with s23C C.Act and s54A C.Act (some written agreement that includes 4P’s: parties, price, property & promise). 2 By verbal contract supported by acts of part performance (s23E(d) C.Act) – only for +ve easement. 3By application of rule in Walsh v Lonsdale (requires parties to have reached agreement on terms of easement to be granted in future). 4 by application of principles of equitable estoppel (where someone would be stopped from denying existence of easement over land). Both OS & TT – 1 s88B plan can create easement – tool used for subdivision – create subdivision through plan – get surveyors to draw plan of SD and mark all things that need to be created

servient land – because owner of servient tenement was permitted to build OVER the land – had rights above – and impliedly said presumably they could also go underground. Therefore this bundle of rights created by the covenant – which restricted use on one lot of land – was enough to create +ve covenant. Reasons by Basten J: 1. As the owner of the servient land still had reasonable use of the land, including the right to build above the car park these rights were capable of forming an easement 2. Even though the agreement was expressed to be a covenant, in fact, the rights granted were in the nature of an easement and it was the substance of the rights granted. 3. To be “validly created” an easement must comply with the provisions of the RPA. Under the provisions of the RPA as it was at the time of creation of the easement (1964) it was enough that a recording was made on the folio of the dominant tenement that was important. There was a recording made on the folio of the dominant tenement at the time it was transferred 4. Changes to the RPA should not be interpreted as [166] “diminishing the rights of property owners, without just terms compensation, unless such a construction is apparent in the express terms of the provision, or by necessary implication It was sufficient to validly create an easement under the RPA in 1964 – if the recording was made only on the dominant tenement – which had been done. This was enough to say that in 2015 the easement not appearing on the servient tenement was an omitted easement within the meaning of s42 (1)(a1) and the NSWCA said the R-G was entitled to record the easement on the servient tenement. Difference between Clos Farming & Jea Holdings where in CF the rights that covered the whole surface of the land were too intrusive and amounted to a claim of joint occupation). In JH Rights of car parkers were non-exclusive – the owner of the servient tenement also had the right to park their cars and owner of the servient tenement had a right to build at a height not less than 12 feet – above the

through easements e.g. shared driveway, sewer/power, restrictions on what people can/can’t do etc. 2 Order of Court (s88K C.Act or s40 Land & Environment Court Act 1979) – provide temporary/permanent easement to access neighbour’s land – only if reasonably necessary and neighbour can be adequately compensated for

servient tenement. Need to consider whether a claim to an exclusive right over a smaller portion of land is capable of forming the subject matter of the easement or whether those rights are too extensive – whether they do amount to claim of joint occupation and whether they’ll be struck down as going further than the law of easements can

c. DT & ST must be different people d. Must be capable of forming the subject matter of a grant (rights granted by an easement must be drafted with sufficient specificity) Clos Farming Estates Pty Ltd v Graham Rush Easton (2002) (Vineyard Case) RE: B & D 2nd requirement – easement must accommodate dominant tenement:

imposition of easement. Implied Grant/Reservation  Reservation (reserving the right upon subdividing to e.g. keep using a path on other person’s property to get to the other side. Grant (granting the right to the other party to use the path on your property to get to other side). Old system: Reservation of easement will be implied only in following circumstances: Easement of necessity (had to be absolute necessity) OR intended easements (parties had turned their minds to it and intended to reserve the easement). Implied grants only in following circumstances: - Parties intended to create an easement but did not do so formally - Easement of necessity, without which the land cannot be used at all, such as when it becomes “landlocked” following sale of the surrounding property - Under the rule in Wheeldon v Burrows following the transfer of part of a parcel of land, whereby rights necessary to the proper enjoyment of the land transferred, or rights which were continuous and apparent, will become easements over the land retained; comes in TT land as well - Where it is the common intention of the grantor and grantee that the land is to be used in a particular manner and an implied easement is necessary to give effect to that common intention - By adverse possession or prescription; that is, by continuous use for a minimum of 20 years - under the principle of non-derogation from grant, whereby an easement is implied to prevent a grantor from using his own property in a way which interferes with enjoyment of the land granted; and - Under the doctrine of equitable estoppel, so that a landowner who stands by, knowing that the neighbor is incurring expense in the belief that access will be granted, may be prevented from denying a right of access. - by Implication from the description of land Wheeldon v Burrows (1879) RULE: TT & Imp. Easements issues whether quasi easements (rights enjoyed under single ownership) grow into real easements after subdivision. Rule applies to land that was previously owned by single ownership & then divided and sold. 4 requirements needed for this rule to apply: 1. There is severance of the grantor’s land 2. At time of severance, the exercise of the quasi-easement is ‘continuous and apparent’ (this requirement is for some physical mark on the land which can be discovered by inspection: normally be a path/pipe etc.) 3. The quasi-easement is necessary for the reasonable enjoyment of the land granted, and 4. At the time of the severance, the grantor must have used the quasi-easement for the benefit of the land granted If satisfied will have an implied easement– legal easement Easements that don’t appear on TT register  omitted easement exception s42 (1)(a1) RPA if the facts indicate that the current TT land was once under OS – and the easement that used to exist does not now appear on the folio of the register – the easement will be enforceable as a specific exception to indefeasibility If the easement had been registered with the RPA but is now “omitted” falls within the section. But the use of the words “validly created under this or any other Act” probably means that easements which would have been created, for example under the rule in Wheeldon v Burrows cannot be said to be validly created under the Real Property Act or any other Act Williams v State Transit Authority [2005] – NSW CA held that doctrine of the lost modern grant is not applicable in NSW. -

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