Week 12- Q1 - Week 12 - Q1 Question and Answers PDF

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Tutorial Week 12 - Easements p 81An easement is simply a right of way and it is a type of incorporeal hereditament. For example, access to a commonly used road or a drainage easement running underneath a property. Rights that are not protected by easements p 83 Cases regarding easements Types of eas...

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Tutorial Week 12 - Easements p 81 An easement is simply a right of way and it is a type of incorporeal hereditament. For example, access to a commonly used road or a drainage easement running underneath a property. -

Rights that are not protected by easements p 83 Cases regarding easements Types of easements p 84 Easements and Other Rights p 84 Common Types of Easement p 87 Remedies p 88 Easements and Torrens System Easements and the In Personam Exception Extinguishment p 89 Profits à Pendre / right of taking

Question 1 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 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.

Issues: Lois → Is there an easement granted to Lois? Jim → Is there an easement granted to Jim? Can Jim access the driveway without the easement? Michael → Is Michael able to take legal action against Jim for the use of his driveway? Substantive elements: p 82 An easement is simply a right of way and it is a type of incorporeal hereditament. It does not provide a right of possession, however, does allow a right annexed to land to utilise other land of different ownership. The dominant tenement is the land to which the benefit of the easement is attached, and the servient tenement is the land over which the easement right is exercised. Easements require elements established in Re Ellenborough Park such as; there must be a dominant and servient tenement, an easement must ‘accommodate’ the dominant tenement, dominant and servient owners must be different people (this is not necessary under Torrens title and also where the easement was created under s 88B of CA- p 82) and a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant subject to the conditions that there is a capable grantee and grantor and that the rights are definite and expressed (Australian Case is Riley v Penttila). Formal requirements: p 85 S 46 and 47 of the RPA provide for the creation and registration of the approved form on the folios of both the dominant and servient tenements. But under Torrens system, easements are indefeasible once registered: RPA, s 42. In the case of the omission or misdescription of an easement, it will be an exception to indefeasibility: RPA, s 42(a)(a1).

This will apply where an easement existed or continues to exist and has not been registered so long as it has been validly created: Castle Constructions v Sahab Holdings (2013) Lois → Application: In the case of Lois and Michael - Lot 1 and Lot 3 constitute dominant and servient tenements, respectively. Lois has a registered easement on the RPA register. The easement does accommodate the dominant tenement (Lot 1, Lois) as it provides convenient access to the road. The dominant and servient owners are different people. Lastly, the easement provides a right of way fulfilling the need for a grant as per the substantive requirements. Thus, Lois’ easement fulfills all conditions of a valid easement. The formal elements mentioned in S 46 and 47 of the RPA have been successfully executed in Lois’ case as per the facts. However, easements are a type of incorporeal hereditament as in it can be transferred but cannot be transferred separately to the land with which it is attached. Therefore, Lois is unable to give Jim the code as his land was not granted the easement. Lois may continue to utilise her right and use the driveway. Jim → Application: As per the facts of the case, there no dominant and servient tenements and thus no legal, registered or equitable easement exists in favour of Jim. There was no evidence that there had ever been an easement for Jim which had been executed or registered and then omitted from the RPA register. Thus, this case cannot fall within the omitted easement exception mentioned in s 42(a)(a1) of the RPA. However, it is possible to acquire an easement by a period of protracted and continuous use. This is analogous to the doctrine of adverse possession. This requires the length of use to be at least 20 years. In the case of Jim, he states that he 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.’ For acquisition by prescription, the claimant asserts positive rights acquired by virtue of certain practices, such as rights of way. However, pursuant to the case of Williams v State Transit Authority, the court held that a prescriptive easement that would come within the in personam exception could not arise in respect of Torrens title land, due to the incompatibility between the common law nature of the easement, that arises from the doctrine of a lost modern grant, and the equitable origin of the rights and belief that forms the basis of the unregistered interest protected by the in personam exception. For these reasons, it is advised that Jim seek an easement under s 88K of the

Conveyancing Act which allows the court to 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. The following elements will need to be fulfilled: (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. It can be assumed from the facts that no public interest will be disadvantaged through Jim’s use of Michael’s driveway, and that no loss is given to Michael as Lois already uses the driveway and Michael has been for 22 years prior. Michael → Application: Depending on whether Jim is granted use of his driveway - for the time being Jim has no legal grant to use Michael’s driveway. At this time, Michael may be able to take actions for trespass on property....