Tutorial-week-12 - tutorial notes and questions for week 12 PDF

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TUTORIAL WEEK 12 - EASEMENTS Readings: Text: Chapter 12; Easements and Profits à prendre Tutorial Questions 1. What are the essential substantive characteristics of an easement? Re Ellenborough Park [1956] 1 Ch  there must be a dominant and servient tenement;  an easement must ‘accommodate’ the dominant tenement;  dominant and servient owners must be different people;  a right over land cannot amount to an easement, unless it is capable of forming the subject matter of a grant. (Australian Case is Riley v Penttila [1974] VR 547) 2. What is the meaning of the requirement that the ‘easement must accommodate the dominant tenement’? How is this different to the requirement that the ‘easement must be capable of forming the subject matter of a grant’?  Dominant tenement must benefit from the servient tenement  Easement increase value of dominant tenement – but doesn’t have to Accommodate Dominant Tenement  Enhancement in value is a significant factor but it will not be decisive– Re Ellenborough Park.  The two pieces of land should be close to each other but it is not essential that they be contiguous.  An easement may accommodate a business carried out on and connected with the dominant tenement rather than the dominant tenement itself. Moody v Steggles (1879) 12 Ch D 261, Copeland v Greenhalf [1952] 1 Ch 488.  The fact that people other than the dominant owner may also derive benefit from an alleged easement is not fatal. Re Ellenborough Park  Easements are usually divisible but cannot normally be consolidated– Gallagher v Rainbow (1994) 179 CLR 624.– Re Eddowes [1991] 2 Qd 381

Subject matter  there must be a capable grantee and a capable grantor (capable in the sense that they can form a valid contract);  the right must be sufficiently definite. Rights which are broadly expressed, for example, a right “to a view” or for “protection from the weather” or “to receive a television signal” are all too vague (Hunter v Canary Wharf [1997] AC 655. A “right to climb trees” or a right to “watch videos” would probably fail on this ground.  The rights granted must be capable of being granted as an easement. They should not, for example amount to exclusive use of the servient tenement or to a

right unknown at law. Copeland v Greenhalf [1952] 1 Ch 488, Grigsby v Melville [1973] 1 All ER 385), Clos Farming Estates v Easton (2002) 11 BPR, 20, 605 3. What will be the effect of registering an easement that does not comply with the substantive requirements? (see Clos Farming v Easton)  Registration will not rectify a defect – therefore not an easement if doesn’t comply with substantive requirements of an easement 4. What is the possibility of an easement by implication arising under the Torrens system? Consider the omitted easement exception under s 42(1)(a1) Real Property Act and the in personam exception.  If the land was at one time held under old system title but has been brought under the provisions of the Real Property Act. If an easement was ‘subsisting immediately before the land was brought under the Act’, but the easement does not now appear on the folio of the register, then the easement will be enforceable as a specific exception to indefeasibility.  If land has always been under the provisions of the RPA. An easement that was initially recorded on the register but that 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. 5. What is a profit à prendre and how does it differ from an easement? Right to take resources? No tenement – just a right to use of land, no dominant and subservient rights

Problem Question 1 (from 2014 final examination) 22 years ago Anna decided to sell three adjoining blocks of Torrens title land that she owned in the Blue Mountains, New South Wales. Michael, Lois and Jim who were good friends bought the properties intending to use them as weekenders for themselves and their families. Michael’s property (Lot 1) has direct access to the adjoining main road. Both Lois (lot 3) and Jim (Lot 2), need to use a driveway that runs over Michael’s property in order to reach their own land located at the rear of Michael’s property. At the time Jim purchased his lot, his solicitor told Jim that Anna was willing to create a registered easement over the land that was to be sold to Michael at a price of $10,000. Jim didn’t think this was necessary as he and Michael were friends and he thought that Michael would have no problem with his continued use of the driveway. He did not talk to Michael about this issue but has been using the driveway over Michael’s land, with Michael’s permission, for the last 22 years as he has no other convenient means of accessing the main road. Lois paid the additional $10,000 and was granted an easement by Anna to “pass and repass over Lot 1 in order to reach Lot 3”. This easement has been properly registered on the folios of both Lots 1 and 3. Michael and Jim fall out and Michael tells Jim that he can no longer use the driveway but will need to find some alternative means of access to his property. He constructs a fence across the driveway and a gate that can only be opened by entering a code onto a keypad. He has given Lois the code and she continued to use the driveway. Lois feels sorry for Jim and has passed the code on to Jim, saying that she doesn’t mind him driving over her property to

reach his own, but Michael is threatening legal action for trespass if Jim continues to drive across his property. Advise Michael, Lois and Jim of their rights in relation to the driveway. Structure Substantive Requirements: 1) 2) 3) 4) Formal Requirements: 1) Registration s 47 and 48 2) S 42(1)(a1) Equity: 1) 2) 3)

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McGrath v Campbell [2006] NSWCA 180

No oral/part performance argument? Jim does not have an easement LOOK UP PERSCRIPTION: Williams and state transit case Question 2 – From 2015 final examination Rick (Lot 1/DP 657483) and Silvia (Lot 2/DP657483) own adjoining properties in the Hunter Valley New South Wales. Rick has an established vineyard and horse stud on his property and Silvia’s is currently undeveloped rural land. In 2010 upon payment from Rick to Silvia of $20,000 Silvia grants the following rights to Rick by execution of a standard Real Property Act dealing form: “The non-exclusive right for Rick, or the owner from time to time of Lot 1/DP657483, to enter, go, pass, repass, turn around and remain upon Lot 2/DP657483 for the purposes of parking farm machinery or for the storage of building materials or animal food on any part of the land. ” The dealing is registered as an easement on the folios of both Rick and Silvia’s properties and, during the period 2010 – 2014 appears on the Register. The instrument also otherwise complies with s88(1) Conveyancing Act, 1919 NSW. In 2014 Silvia sells her property to Percy. After the transfer to Percy is completed and he has become the registered proprietor, the easement is no longer noted in the second schedule of encumbrances for Lot 2/DP657483. This has apparently been caused by oversight on the part of the registration clerk in the Land and Property Information department. Percy wants to start farming the whole of his land and asks you whether or not he is entitled to plant grape vines over the whole surface of his land so that he can also start producing wine.

Firstly is it an easement according to Re Ellenborough Park [1956] 1 Ch  there must be a dominant and servient tenement;  an easement must ‘accommodate’ the dominant tenement;  dominant and servient owners must be different people;  a right over land cannot amount to an easement, unless it is capable of forming the subject matter of a grant. (Australian Case is Riley v Penttila [1974] VR 547) Rights which are broadly expressed, for example, a right “to a view” or for “protection from the weather” or “to receive a television signal” are all too vague (Hunter v Canary Wharf [1997] AC 655 Clos Farming:  The Right must be Capable of Forming the subject Matter of a Grant There are 3 questions here: o are the rights expressed in terms too wide and vague in character; o 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; o do the rights constitute mere rights of recreation possessing no quality of utility or benefit.

Registration (a formal requirement) does not rectify a defect: Clos Farming v Easton No easement can be implied since, despite being registered and falling off due to error, it was not validly created initially: s 42(1)(a1) Real Property Act HAS NOTHING...