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Easement Notes

Easement; a right annexed to land to utilise other land of different ownership in a particular manner or to prevent the owner of other land from utilising his land in a particular manner Dominant land; parcel of land with the benefit of the easement Servient Land; parcel of land being burdened by the easement Positive Easements; give rights of entry onto another persons land to enable something to be done on the land e.g. right of way, rights to discharge water Negative Easements; rights to prevent something being done e.g. rights to flow air through defined apertures, to support a building etc A) Characteristics of Easements (Re Ellenborough Park (1956): 1. 2. 3. 4. There must be a dominant and Servient tenement Easement must accommodate the dominant tenement Same person cant own and occupy the dominant and Servient tenements The rights claimed as an easement must be capable of forming the subject matter of a grant

1. Dominant & Servient tenement - an easement cannot exist in gross; it must always be appurtenant to a dominant tenement (Concord Municipal District v Coles 1906) - dominant tenement usually a parcel of land BUT can also include right to mine or fish - easements generally perpetual rights they benefit and burden freehold interests in land however easements also exist where Servient tenement is held for leasehold interest - extrinsic evidence is admissible to identify the intended dominant tenement if the instrument creating the easement fails to adequately identify it limited to objective factors e.g. layout of the land admissibility of evidence subject to s88(1) of Conveyancing Act 1919 2. Must accommodate dominant tenement - easement must benefit the dominant tenement and be connected with its enjoyment - personal privilege or commercial advantage intended to benefit owner of dominant tenement but unconnected to its occupation is not an easement - whether an easement enhances commercial value is relevant but not decisive

- an easement can accommodate the dominant tenement even though it also benefits persons with no proprietary interest (Re Ellenborough Park) - dominant and Servient tenements need not be contiguous but must be close enough for right to be claimed practically if they are not contiguous it is unlikely the easement will accommodate the dominant tenement - if dominant tenement is later subdivided easement is presumed to accommodate the subdivided parts enables successive owners of those parts to exercise the easement unless: 1. the easement does not accommodate the subdivided parts 2. the easement was only intended to benefit certain parts of the dominant tenement - if dominant tenement is consolidated with other land easement does not benefit entire consolidated land only the former dominant tenement 3. Same person cant occupy dominant and servient tenements - person cannot have easement over their own land (Shelmerdine v Ringen 1993) - but a person can grant an easement over part of their land in favour of a tenant on another part of land binds the landlord and the landlords successors for duration of the lease - Modifications to the rule by statutes; - s88B of CA 1919 easement can be created even if land benefited and land burdened is in the same ownership - s46a of RPA 1900 person may create a registered easement despite owning both the benefited and burdened land under Torrens title - this principle does not prevent creation of potential easement because easement does not come into existence until mortgagee exercises its power sale severing the titles to the mortgagors benefited or burdened land 4. right to claim must be capable of forming the subject matter of a grant - grantor must be capable of granting the easement and the grantee capable of receiving it - for the requirement of grantability easement must not be too vague or indefinite e.g. cannot be an easement for the free flow of air, or protection from the weather - easements considered to be too wide or vague involved claims to easements arising by prescription of implication - an easement cannot amount to the proprietorship or possession of the servient land because easement only confers limited rights of use and NO right of ownership/possession

- cannot possess or exclusively use servient land e.g. storing wine in a cellar is not an easement as it effectively gives an exclusive right to use the whole of the confined space representing the servient land (the cellar) - qualified easements allow use by both dominant and servient owners e.g. drawing water from servient land that is also used by servient owner. B) Creation of Easements - Easement is presumed to be granted for a fee simple interest either old system or Torrens cannot be granted that is more extensive that the grantors own interest - can be granted for a period or interest less then fee simple provided that it is drafted with clarity that its precise duration can be ascertained e.g. duration of a lease, grantors life - easement over land to which grantor has no title is nullity grantor estopped as against the grantee from denying the grantee from denying the grant Creation by express grant a) Old System - express grant of easement must be by deed no particular form of words necessary for the grant - person who holds an equitable interest in land cannot create a legal easement equitable easement - equitable easement must possess the aforementioned characteristic of an easement must be evidenced in writing - a legal easement that fails for want of formality creates an equitable easement Agreement to grant an easement cannot create equitable easement unless the right is clearly claimed as an easement parties must own the tenements -depending on agreement depends on upon creation of equitable easement b) Torrens Title - s46 RPA 1900 easements created by executing and registering an approved form of transfer - Registar-General must record particulars of the dealing creating the easement in the folios for the burdened and benefited land - once registered on the title of burdened land, easement is indefeasible - easement may benefit land under the Torrens title even though servient tenement is under old system title no provision to record the easement

- easements may be created by registration of a plan (s88B CA) automatically creates easements even though land may be under common ownership S88(1): easement is unenforceable against a person not a party to its creation unless the instrument clearly indicates the land benefited, burdened, and the required consent from relevant persons. Enables people who are alleged to affected by agreements to which they were not party to see in written form how the specified matters affect their land Land must clearly indicate matters listed in s88(1) must satisfy Registar-Generals satisfaction

Creation by Express Reservation - an owner who grants away part of their land may reserve an easement in favour of the part retained 1) the grantor (A) conveys or transfers the land fee-simple to (B) 2) (B) grants an easement to A Statutory Reforms S88k Conveyancing Act; - if the easement is reasonably necessary for the effective use or development of other land court can impose an easement - no order can be made unless the court is satisfied the use of the benefited land will not be inconsistent with public interest, owner/people with interests of the burdened land - court may limit the times which the easement may apply and can order compensation - easement takes effect when registered - s88k requires grant of easement to be reasonably necessary for the effective use or development of the benefited land not for the convenience of a particular proprietor of land - reasonable necessity is not absolute necessity it is not suffice that the easement would be convenient or nice to have must be closer to necessity then it is to convenience - s88k (2) court has no power to impose an easement unless it is satisfied that owner of the servient land can be compensated for loss difficult to assess for loss of intangible benefits such as amenity - compensation only awarded for loss or disadvantage caused by imposition of the easement Land and Environment Court Act 1970 s40

- empowers the L.E court to make an order granting an easement over land under the criteria in s88k jurisdiction exists when the court has determined to grant or modify a development consent on appeal or proceedings on an appeal in relation to granting or modifying a development consent are pending before the court Extent of Rights conferred by easements - when an easement is created by express grant or reservation manner of use is matter of interpreting the instrument - instrument construed from normal meaning of words read in light of circumstances - most easements are cast in terms that are general and unspecific key circumstance used is physical nature of land e.g. right of way easement; precise extent is not specified but if the way is paved then this would be the presumed way - easements cannot be used in a manner beyond the use that the terms of the grant and the surrounding circumstances indicate objectively was contemplated by the parties at the time of creation Extinguishment of Easements pg 504 a) Express Release - Extinguished by express release by the owner of the dominant tenement in old system by deed and in Torrens through registered transfer - Also may be released on the registration of a plan b) Merger of leasehold and freehold - Merger of leasehold and freehold does not extinguish an easement (e.g. right of way ease.) easement remains for the period for which it was granted dominant land still capable of benefiting from the easement for intended duration c) Extinguishment by statute - Statutes may require activities to be carried out on the servient land that is incompatible with the continuing existence of the easement easement will be extinguished unlikely d) Abandonment - Easements may be lost by abandonment onus of proof rests on the person alleging abandonment its not given lightly (pg 506 16.119 for example) - easement is not abandoned by mere non-use owners of the dominant tenement are not presumed to intend to give up an easement unless to do so in their advantage this need of intention to abandon means that there cannot be abandonment where the owner of the dominant tenement is not aware. - Under Torrens Title ; if current registered proprietor of the dominant land has engaged in conduct that at common law would constitute abandonment OR where predecessors in title of

the current registered proprietor engage in the same conduct s89 of Conveyancing Act gives the court discretion to order abandonment e) Common Ownership and Possession - Easements are extinguished when dominant and servient tenements coming into common ownership and possession removal of key feature of easements - Exists only when ownership AND possession is common no extinguishment if A has common ownership/poss. over both tenements but there is a tenant - In NSW easement not extinguished by common own/poss where the easement remains necessary for the benefited land hard to justify - Once extinguished easement is not revived once ownership and possession later separate must be recreated - Easements created under s88B are not extinguished by common own/poss. OR if they have been recorded in the Register f) Order of Court - Covneyancing Act s89 Supreme Court may extinguish/modify an easement if it meets following grounds; o Because of a change in use of land or character of neighbourhood, easement ought to be deemed obsolete o Those entitled to easement benefit have agreed to modification/extinguishment or by acts/omissions have considered abandoning it or waiving the benefit of the easement o Proposed modification or extinguishment will not substantially injure those entitled to the easement - Court may declare whether land is affected by an easements, its nature and extent, and who may enforce it - Court may treat an easement as abandoned if satisfied that the easement has not been used for at least 20 years - S89(1)a permissive, not obligatory effect is hard to predict - Proof that easement is obsolete is difficult to establish if rights are not currently being used at their fullest extent or if physical changes to the land NOT OBSELEE - Power to modify limited to the scope of the easement and not to enlarge it does not include the power to order the easement to be relocated - Environmental Planning and Assessment Act 1979 (NSW) s28 allows planning authorities to override easements that would otherwise impede land development - S28(2) the key provision: in order to enable development to be carried out in accordance with an environmental planning instrument or in accordance with development consent, an environmental planning instrument may provide that a regulatory instrument is not to apply a regulatory instrument includes an easement

Omitted or Misdescribed Easements (20.83) pg 807

S42(1)a: 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. This act is split into two limbs dealing with old system (subsisting before the Act) and created after (Torrens title). If the land was originally under old system, and while it was, an implied easement was validly created but then left off the title when the land was brought under the Torrens system, then it may qualify as an exception to indefeasibility under s 42(1)(a1) Real Property Act. In this instance, the easement is considered omitted as there was no need for quasi-easements to be noted under old system However, these easements are still enforceable. This was found in Australian Hi-Fi Publications v Gehl (1979) and Beck v Auerbach (1986) However, these easements are still enforceable.

If the land has always been held under Torrens title then it is unlikely that an implied easement will operate as an exception to indefeasibility to a registered proprietor with a clean title . This is because an unregistered easement, or any other interest in that matter, is susceptible to defeat by other, registratble interests because under Torrens title an easement is not considered validly created unless it is registered. However if it was at one time validly created through registration but has since disappeared from the register, for example, through error or mistake from the LPI, the easement is considered to be omitted and is enforceable.

An easement which does not appear on the title may be an exception to indefeasibility if it can be the subject of an in personam claim or if the registered proprietor has achieved a clean title through fraud relating to the easement.

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