Topic 6 - Easements and Profits a prendre PDF

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Easements and Profits a prendre. Lectured by Maria Abertos...

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Sunday, 3 November 2019

Topic 6 - Easements and Profits a prendre What is an easement?!

- A right annexed to land to utilise from using the land of another in a particular manner, or to prevent another using his or her land in a particular manner.!

- Examples: right of way, right to drainage! Characteristics of easements!

- Incorporeal (intangible) Hereditaments! - Easements run with the land! - Carry through to successive title! - Dominant (user) vs Servient (grantor) Tenement! - Positive vs Negative Easements! - Allow you to do something vs prevent you from doing something! Re Ellenborough Park [1956] Ch 131 Facts: !

- 80 houses, all had access to park. Park was held on trust. ! - Dominant Tenement: Somerset estate owners! - Servient Tenement: Ellenborough Park! - Upon WW2, owners unable to access park due to government use! - Claimed compensation! Issue: !

- Were the dominant tenement owners entitled to compensation?! - Contingent on the park being characterised as an easement!

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4 CHARACTERISTICS OF AN EASEMENT: 1. There must be a dominant and servient tenement; ! 2. An easement must accommodate the dominant tenement, that is, be connected (appurtenant) with its enjoyment and for its benefit; ! 3. The dominant and servient owners must be different persons; and! 4. The right claimed must be capable of forming the subject-matter of a grant!

1. Dominant and Servient Tenements!

- s 88(1) CA! - …shall not be enforceable against a person interested in the land claimed to be subject to the easement or restriction, and not being a party to its creation unless the instrument clearly indicates: !

- (a) the land to which the benefit of the easement or restriction is appurtenant;! - (b) the land which is subject to the burden of the easement or restriction! - (c) the persons (if any) having the right to release, vary, or modify the restriction, other than the persons having, in the absence of agreement to the contrary, the right by law to release, vary, or modify the restriction, and !

- (d) the persons (if any) whose consent to a release, variation, or modification of the easement or restriction is stipulated for. !

- Instrument must specify all the above! 2. Must accomodate the dominant tenement!

- Must benefit the DT, and be connected with its enjoyment (Re Ellenborough Park)! - Increase of value may constitute this accomodation (must be connected to use)! - e.g. easement for right of way to access road! - Right to enjoy park (DT) gives benefit of land (Re Ellenborough Park)! - BUSINESSES - Clos Farming Estates v Easton! - Facts:!

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- C developed lots with part residential component (Part A) and a part farming component (Part B). !

- Dominant tenement holder could enter the land and control it by means of planting, maintenance, and harvesting of the grapes as well as right to sell.!

- E wants to sell land without easement! - Issue: Was this a valid easement? Does it accomodate DT?! - Held: ! - The easement benefited to business, but did not benefit the land. ! - No connection! 3. DT and ST must be owned and occupied by different persons!

- At common law, not possible to have easement over own land.! - Developers:! - S 88B(3)(c)(ii) CA: When land is subdivided, all easements recorded over all titles.!

- Individuals:! - S 46A(1): allows for creation of easement even if DT and ST are same person! - S 47(7): easement not extinguished solely due to DT and ST being same! 4. Right claimed must form a subject matter of a grant!

- 3 questions (Re Ellenborough Park) - Is it too vague?! - Do the rights amount to rights to joint occupation ! - i.e. are the rights so broad as to allow DT to live on property?! - Degree of rights still held by ST to enjoy their land! - Mere rights of recreation?! - Extent of use and occupation - Registrar-General of NSW v Jea Holdings ! - Facts: DT had right to park on ST’s land.!

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- Terms of Easement: That the parking area shall at all times be for the exclusive use (save that the Transferor its successors and assigns and the owner for the time being of the land having the burden of this covenant shall be permitted to erect over or under the said parking area such building or buildings at a height of not less than 12 feet which shall not obstruct or prevent the use of the said parking area for the purposes herein provided and which shall not obstruct the ingress or egress therefrom or therein) for the parking of motor vehicles by the Transferee its successors and assigns and the owner for the time being of the land hereby transferred and their respective tenants and lessees and it and their servants and invitees and the customers and patrons of the hotel to be erected on the land hereby transferred together with the Transferor its successors and assigns and the owner or owners for the time being of Lots 1 to 4 inclusive in Deposited Plan 219028 and their respective tenants and lessees and it and their servants and invitees and their customers.”!

- Issue: Was the language too broad?! - Held: Look at terms of easement. ! - Degree/proportionality/ What is the extent of interference?! - I.e. how much of the land can the ST actually use?! - Covers entire space, however ST retains airspace, subterranean space! - Court held valuable rights still held.!

CREATION OF EASEMENTS Grant: when you give an easement! Reservation: when you sell land and want to keep !

Express easements! Legal Easements

- S 57: must be registered! - s 46 RPA: must use approved transfer form (not just writing)! - S 47 RPA: once RG receives, they will record on both DT and ST land! - S 88(1) CA: must specify benefited and burdened land + any parties who can modify! Equitable Easements 4

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- s 23C(1)(a): must be in writing! - S 54A(1): part performance! Plans of Subdivision!

- s 88B CA! - (2) A plan shall not be lodged with the Registrar-General for registration or recording under Division 3 of Part 23 unless it indicates ….!

- (a) what easements, if any, are intended to be created: ! - (b) what easements, if any, … are intended to be created burdening land comprised in the plan and in whose favour those easements are intended to be created, !

- (c) what other easements or profits à prendre, if any, are intended to be created appurtenant to or burdening land comprised in the plan! Imposed by the Court

- s 88K CA! - (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. !

- (2) Such an order may be made only if the Court is satisfied that: ! - (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and !

- (b) the owner of the land to be burdened by the easement ….can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and !

- (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. !

- (4) adverse cost order made against servient tenement if they refuse reasonable offer, rather than the dominant tenement paying costs!

- Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568 ! - Facts: ! - AK got development approval, but had to negotiate with S to allow for draining easement! 5

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- AK offered 40k for easement, S refused. AK went to court! - Issue: ! - Was the easement reasonably necessary for effective use or development?! - Held: ! - Yes reasonable necessary.! - Court costs: ! - Adverse cost order not made against S, as S holds right to reasonably refuse. (would have been unreasonable if refused $1M)!

Implied Easements! (NOT IN WRITING)!

- Implied Grant ! - Where there is no express easement, but the easement is necessary for the proper enjoyment of the dominant tenement: ! CAN BE IMPLIED:! By General Words!

- OST: s 67(1) CA! - Conveyance of land includes easements! - Torrens: s 51 RPA! - Easement passes on to new RP By the manner of description of the property;!

- How the land is described. e.g. if land is next to road can be implied easement By common intention; !

- e.g. when parties agree to be bound! Non-Derogation from Grant; Under the rule in Wheeldon v Burrows;

- Legal unregistered easement applies when DT is sold.! - WHEN ONE PERSON OWNS ALL PROPERTY, BUT SEVERS ONE! 6

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- Aldridge v Wright easement if both lots are sold! - Will be Wheeldon v Burrows easement if:! - Severance! - e.g. if one person owns all land and subdivides! - e.g. if two properties, and one is sold! - Continuous and Apparent! - Must not have fallen into disuse! - Inspection of land must reveal the nature of the easement! - Necessary for reasonable enjoyment! - At time of severance, must have been used for benefit of land! - Wheeldon v Burrows - Allen sold lots to Burrows and Wheeldon. Wheeldon subject to Burrows easement for right for light. Mr Wheeldon dies. Mrs Wheeldon constructs thing blocking window. Burrows dismantles, on basis of easement. Court held easement was valid, as it me the above criteria.! By necessity: !

- Applies to both reservations and grants! - e.g. in cases of landlocked property! - North Sydney Printing v Sabemo [1971] 2 NSWLR 150! - Court said: ! - Look at intention of parties! - If it absolutely necessary for enjoyment of property?! - At the time of sale, were the parties intending to be bound?! Prescriptive Easements! Doctrine of lost modern grant!

- Requirements:! - Not by force (not forcefully entering and using property)! - Not in secret (open use signifies existence of easement)! 7

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- Not by permission (permission assumes that right did not exist)! - Must demonstrate that for 20 years, an easement has been in use!

EASEMENTS AS AN EXCEPTION TO INDEFEASIBILITY Omitted or misdescribed easement!

- s 42(1)(a1): Exception to indefeasibility ! - in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act, !

- Two categories:! - ‘Subsisting Immediately’ ! - Refers to easements created over Old System title, which were omitted from the Register when the land was converted to Torrens Title; !

- ‘Validly Created’ ! - Refers to easement created over land that was always Torrens Title land. ! - James v Registrar-General (1967) 69 SR (NSW) 361! - New folio was issued. Easement left off title. Parties validly created.! - Prescriptive easements! - Not ‘validly created’ under TT (Williams v State Transit Authority)! - Implied easement! - Must show cause of action as exception (McGrath v Campbell) Omission

- Does not require fault on part of RG (Dobbie v Davidson)! 8

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- Removal of easement is not omission! - Castle Constructions v Sahab Holdings - Owners of land agreed to remove easement through appropriate forms! - Sahab buys dominant land, wants to use easement.! - Argues removal is omission! - Court held: there was NO easement. Nothing to omit.!

INTERPRETATION AND EXTENT OF USE Interpretation of Implied Easements!

- Depends on nature or quality of easement at time of creation! - Wheeldon v Burrows easements and prescriptive easements! - What was the original purpose of the easement! - Changing use of easement! - CAN change unless radical change (McAdams Homes Ltd v Robinson)! - e.g. original easement was walking - change cannot purport to allowing driving a truck, etc.!

- Must not limit ST’s rights! Interpretation of Express Easements! Nature of rights as DT depends on agreement!

- Interpreting easements to only take into account: (Westfield v Perpetual)! - Material registered in the folio! - Easement instrument! - Registered plan! - Physical characteristics of DT and ST! - In cases of bare grants (limited language used in easement)! - Examination of extrinsic material cannot be considered (Neighbourhood Association DP 285220 v Moffat)! Westfield v Perpetual 9

Sunday, 3 November 2019 Facts: !

- Westfield built Skygarden in Pitt Street Mall. Perpetual owned the premises known as ‘Glasshouse’. By way of a registration of subdivision plan (s 88B) an easement was created benefitting Westfield, and burdening Perpetual. !

- Westfield had hoped to use the right of carriageway to cross Perpetual’s land, and then drive under its own land as well so that it could reach additional properties that it was going to develop.# !

- The Easement provided: ! - Full and free right of carriageway for the grantee its successors in title and registered proprietors for the time being of an estate or interest in possession of the land herein indicated as the lots benefited or any part thereof with which the rights shall be capable of enjoyment and every person authorised by it, to go, pass and repass at all times and for all purposes with vehicles to and from the said lots benefited or any such part thereof across the lots burdened.” !

- High Court: Dismissing the appeal! - [30]: “The access is to go, pass and repass to and from Skygarden and across Glasshouse. The terms do not speak of going, passing and repassing to and from and across Skygarden, and across Glasshouse. The term “for all purposes” encompasses all ends sought to be achieved by those utilising the Easement in accordance with its terms.!

- Extrinsic Material: [39]: “The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing.”!

- At [45]: “It may be accepted, in the absence of contrary argument, that evidence is admissible to make sense of that which the Register identifies by the terms or expressions found therein. An example would be the surveying terms and abbreviations which appear on the plan found in this case on the DP.”!

Extent of Use! Ancillary Rights!

- When looking at ancillary rights, you can also look at what is reasonably necessary for enjoyment of the easement!

- Right to park vehicle on vehicle access way (Moncrieff v Jamieson)! 10

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- Butler v Muddle - Did a right of carriageway include the right to pave the carriageway? ! - Facts: ! - Butler (Servient Tenement) owned a battleaxe block, which ran past Muddle’s property (Dominant Tenement).!

- The easement provided, “Full and free right of every person who is entitled to an estate in the land…to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement and any such part thereof”. !

- Issue: Could Butler restrain Muddle from constructing on the right of way? ! - Held: Right to pave carriageway not reasonably necessary! Change of Use

- Must:! - Be reasonably contemplated by the parties (Todrick)! - Not unreasonably interfere with the rights of the ST ! - Jelbert v Davis! - Facts: ! - Mr Jelbert (Dominant Tenement) was granted a right of way over a driveway, “at all times and for all purposes… in common with all other persons having like right”. The driveway was used to access a highway. !

- Mr Jelbert obtained planning permission for a tourist caravan and camping site, which would allow 200 campers to use the driveway to access the highway. !

- Issue: ! - Was Mr Jelbert permitted to change the use of the easement in such a way?!

- Held: ! - Was not reasonably contemplated. Also unreasonably interfering with ST!

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REMEDIES AND EXTINGUISHMENT Remedies!

- Available available if interference is ‘substantial’ or ‘material’! - Abatement - Removing the interference! - Nuisance - Must demonstrate to court that DT’s actions amounted to nuisance! Extinguishment! Express extinguishment

- Extinguishment of easement by agreement! - TT: register a transfer under s 47(6) RPA! Implied release: by abandonment or non use

- If for a long period of time easement no longer in use! - Onus on party seeking abandonment ! - Question of fact (Court will consider all circumstances)! - Mere non-use not abandonment (Treweeke)! - Treweeke v 36 Wolsely Road - Facts: ! - Land was subdivided in 1927. Block A (the dominant tenement) was granted an express easement (a 3 foot wide right of way) over Block B (the servient tenement). !

- Mrs Treweeke acquired Block B (the servient tenement). ! - She installed a bamboo plantation, a retaining wall, built a fence and constructed a swimming pool. !

- Issue: Were the new owners of Block A (36 Wolsely Road, a Body Corporate) still permitted to use the easement? !

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- Held: Easement was not abandoned, use stopped only bc it was impossible! Statutory modification or Extinguishment

- Registrar General can cancel an easement as abandoned if not used for at least 20 years: s 49(1) RPA!

- A caveat may be lodged against an application under s 49 (per s 74F(4A))! - S 89(1) CA ! - (a) Obsolete ! - If use of land has changed, so easement no longer necessary ! - If character of neighbourhood or surroundings area has changed! - If continued existence would impede reasonable use! - (b) If parties have agreed, or by acts or omissions show abandonment! - The Supreme Court MAY treat an easement as abandoned, if satisfied that it has not been used for at least 20 years: s 89(1A).!

- (c) If extinguishment will not substantially injure DT ! Abandonment and Indefeasibility!

- Should a registered easement be extinguished if RP doesn’t use it?! - If court is satisfied that all DT’s of easement have intended to abandon, they can find abandonment (LOOK AT ACTIONS OF PREVIOUS OWNERS TOO)!

- If parties reached agreement to remove easement, but did not register removal! - Pieper v Edwards! - P buys property as DT, which entitled him to right of way. Seller told P that there was agreement to extinguish between him and E. P wanted to assert right to use easement!

- Court Held: Although P had not personally abandoned easement, the previous owner had, so the easement was extinguished!

PROFITS A PRENDRE Not examinable

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