Land Law

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Four Requirements of a Valid Easement

ReEllenborough Park

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1.Dominant and servient tenement; Gas vBarba

2.Easement must ‘accommodate’ the dominant tenement; Re Ellenborough, Clos Farming

3.The dominant or servient tenement must not be held and occupied by the sameperson;

4.The right must be capable of forming the subject matter of a grant; Re Ellenborough, Moncrieff

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What is a dominant tenement?

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1. It's the land which takes the benefit of the easement and

2. Is held by the grantee of the right

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What is a servient tenement?

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1. The land subject to the burden of the easement and

2. Held by the grantor of the right

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1. Dominant and Servient Tenement

Characteristics

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1. Don't need to be right next to each other, but must be sufficiently proximate Todrick v Western National Omnibus

2. The right is annexed to the DT over the ST: it must benefit the land itself (personal benefit, ie easement in gross, is insufficient)

3. Exception: CA s 88A: easements in gross can be granted to the Crown, public/local authority established by legislation or corporations that oversee public utilities

4. DT does not need to be specifically identified in the instrument of creation. CT may have regard to surrounding circumstances to determine whether there is a right affixed to the DT Gas v Barba

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2. Must Accommodate the Dominant Tenement

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MUST BENEFIT THE LAND RATHER THAN THE OWNER OF THE LAND

1. This means making the DT a better and more convenient property/is it reasonably necessary for its better enjoyment as a parcel of land?: Re Ellenborough Park.

2. Benefit must have a sufficient connection to the land Hill v Tupper

3. Commercial Benefit: theconduct of the trade must be a necessary incident to the normal enjoyment of theland, not merely an independent business exercise Clos Farming

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Hill v Tupper

the tenant of land on a canal bank had been given the exclusive right to put boats on the canal. T put rival boats on the canal so H sued.

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claim failed as it was held that this right did not amount to an easement because it did not accommodate the dominant tenement. a licence not an easement existed.

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Re Ellenborough Park

Houses were built on plot surrounding a park, conveyed with the fullenjoyment of any such easements as should relate to the park so long as they made fair contributions to theupkeep; each covenanting to do so. Park was vested in P who sought declaration as to the nature of the rightswhich related to the park.

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1. Whilst clear that the park did enhance the value of properties, that is not sufficient for accommodation;must also show that it was connected with the normal enjoyment of the property, the connection beingone of fact which depends on the nature of the tenement and the right granted.

2. Rejected submission that the right was personal only (akin to one to play on cricket ground for free) andclaimed that was like a garden; that being something which enhances ordinary enjoyment of land.o

3. The right was not one of joint occupation and did not offend against notion of proprietorship orpossession of that land by the owner;

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Moody v Steggles

C owner a pubPub was down a narrow alleywayfor the last 40 years, a sign had hung on the D's property which was on the highstreet (sign directed to the pub)D took the sign down because it creakedC claimed right to hang = easement

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HELD - right to hang = an easement. Although the right benefitted the pub, not the land per se, the business was very closely connected to the land, and any owner of the land would likely run a pub from the premises. Therefore, right connected to the land. The right benefitted the land (because the land would always be used as a pub, or some business like premises).

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3. DT and ST can't be owned and occupied by same person

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1. Where landlord owns two neighbouring pieces of land—tenant leasing one block may obtain easement over the neighbouring block and will continue to exist for the duration of the lease (Cardwell v Walker)

2. Where DT & ST come into same ownership AND occupation—existing easement extinguished (Margil Pty Ltd v Stegul Pastoral Pty Ltd)

3. Although—easements may be registered where both DT &ST are in name of same registered proprietor in certain circumstances (eg subdivision and sale: CA s 88B(3), RPA ss 46A(1), 47(7))

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3. DT and ST can't be owned and occupied by same person

Exceptions

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s 88B(3)(c)(ii) CA: easement may be created by registration of plan of subdivision w/ Registrar General, even if at time of registration both DT & ST are owned by same person

s 46A RPA: can create easement despite owning both DT & ST if they're both torrens title

s 47(7) RPA: easement will continue to exist if DT & ST come to be held by same person.

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4. Capable of Forming Subject matter of grant

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Re Ellenborough park 3 requirements

1. Must not be expressed in termstoo wide or unclear.

eg. jus spatiandi: a right to allow someone to wander on yourland – this is a not a valid land right, as it is too vague in the rights itconfers

2. Whether it was a mere right ofrecreation without utility or benefit

- There is difference between a mere enjoyment and a right withsubstance

3.Whether rights would amount torights of joint occupation or would substantially deprive owner the owners ofproprietorship or legal possession

- Clos Farming: easement will not arise where its existence would be inconsistent with the ownership or exclusive possession of the servient tenement.

- right to build/exclusive possession too extensive to = easement (Tileska v Bevelon; Evanl Pty Ltd v Nelson)

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Interests NOT capable of forming subject matter of grant

Examples

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1.protection from the weather (Phipps v Pears)

2. Privacy (Browne v Flower)

3. A view (William Aldred;s Case)

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Interests Capable of forming subject matter of grant

Examples

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1. Right to enjoy a park (Re Ellenborough park)

2. General flow of air (Cth v Registrar of Titles)

3. Subdividing wall waterproofed (North v Marina)

4. A for “private recreational purpose” over large area of open parkland (City Development Pty Ltd v Registrar General of NT)—no reason why easement for recreational purposes could not be created. “Some pleasant occupation, pastime or amusement” = in context of lakeside development to = walking, swimming, boating, photography, birdwatching etc...

5. Now settled that jus spatiandi (right to wander at will over the whole of the alleged servient land” + “right of recreation” may be subject of valid easement)

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4. Capable of Forming Subject matter of grant

Does it interfere with exclusive possession of ST?

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Mocrieff modified by Ryan v Sutherland:

Ask whetherthe servient owner retains possession and, subject to the reasonable exerciseof the right in question, control of the servient land

Ratio - Test:

1. Is the dominant tenement’s exercise of the ancillary rightreasonable?

2. Does the servient owner retain possession and control of their land?

(considering the parcel as a whole, not just the burdened part)?

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Right of Way

Definition

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A right of way is a right to pass over or to make use of the land of another International Tea Stores Co v Hobbs

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Interpreting Easements

How to determine the rights granted by the easement instrument?

Westfield Mgmt v Perpetual Trustee Co Ltd HC

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Evidence is admissible to make sense of thatwhich the Register identifies by the terms or expressions found therein. Butevidence admitted to establish the intention or contemplation of the parties tothe grant of the easement is forbidden.

1.Principle of indefeasibility applies to registered easements - regard may only be had to the register

2. K interp rules don't apply, so use of extrinsic material to interpret the grant is verboten.

3. only material relating to the physical characteristics of the tenement can be considered.

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Perpetual Trustee v Westfield Mgmt NSWSC

Access to third party land

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1. Can't use the right of way to access land that does not have the benefit of the easement.

2. Use of an easement can't be extended so as to impose a burden greater than that which the ST holder agreed to accept.

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Right to light and Air

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1. Commonwealth v Registrar of Titles HC: recognised right to uninterrupted access of light and air as an easement despite fact that right was not limited to accessed todefined apertures in a building

a) Categories of easement are not closed

2. Right to light and air cannot be acquired by prescription (aka long use) because of impossibility on part of ST holder interrupting it – Harris v De Pinna (1886)

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Rights of Support/Party Walls

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At CL rights of support of one’s own land from one’s neighbour’s land are not easements but natural rightsissuing from land – Dalton v Angus

- Rights to support a building on land not a natural right, but may be an express easement – Dalton v Angus

Party Wall: at CL where a common owner sold buildings mutually supported by a party wall, impliedcross-easements as were necessary to carry out common intention of parties re wall – Richards v Rose

NSW governed by statute – where a wall is described as a party wall in transfer documents, mutual cross-easements of support arise s 181B(1) CA