Easements
The facts indicate that X has an easement over Y’s land. X is the dominant tenement and Y is the servient tenement. Easements are an incorporeal hereditament, and they d not have the characteristics of exclusive possession. Contents: 1. Substantive requirements 2. Creation 3. Types of easements 4. Extending the use of an easement 5. Remedies 6. Extinguishment 7. Easements and TT 1) SUBSTANTIVE REQUIREMENTS Re Ellenborough Park [1956] stipulated that an easement must be appurtenant and benefit a dominant tenement, and must be capable of forming the subject matter of the grant. Additionally, the tenements cannot be held and occupied by the same proprietor. These elements must be evident from the effects of the instrument creating the easement and not from its wording (Bursill Enterprises v Berger Bros Trading (1971)). Four elements: 1. There must be a dominant and a servient tenement, 2. The easement must accommodate the dominant tenement, 3. The dominant and servient tenements must not be held and occupied by the some person, 4. The right must be capable of forming the subject matter of a grant. 1. There Must be a Dominant and a Servient Tenement: • Easement must be appurtenant to the dominant tenement, it is not possible to have an easement which benefits a person without also benefiting the land, the easement must be annexed to the land (Municipal District of Concord v Coles (1905)). At CL an easement which is not appurtenant to a dominant tenement is known as an easement in gross. • Under s 88A(1A) CA an easement without a dominant tenement may be created in favour of a prescribed authority, and any such easement may be assured to a prescribed authority. • However, under s 88(1B) CA, an easement without a dominant tenement may only be created if the easement is for the purpose of, or incidental to, the supply of a utility service to the public, including (but not limited to): o The supply of gas, water or electricity, or o The supply of drainage or sewage services • There is no requirement that the dominant tenement be a corporeal (physical) interest, it may also be another incorporeal interest such as an easement or profit (Hanbury v Jenkins [1901]) 2. The Easement Must Accommodate the Dominant Tenement • The easement must be connected with the enjoyment and benefit of the dominant tenement (Re Ellenborough Park [1956]) – o Where the court held that the right to use a small park adjacent to the dominant property for recreation was held to accommodate the tenement, for the reason that this was a right connected with the normal enjoyment of houses. • Although the tenements do not need to be physically neighbouring or adjoined, the tenements need to be sufficiently close that a real benefit accrues to the dominant tenement (Todrick v Western National Ombibus [1934]) The land, and not the current owner must be benefited (Hill v Tupper (1863)) – where the right to hire boars on a canal did not amount to an easement • An easement benefitting a trade carried out on the dominant tenement may in appropriate circumstances be a valid easement (Moody v Steggles (1879)) – o Where an easement to fix a sign on the wall of the defendant’s house was held to accommodate the P’s tenement because it benefited the business that he carried on there. • However, this provided that the conduct of the trade is necessary incident to the normal enjoyment of the land and not merely an independent business exercise (Clos Farming Estates v Easton (2002)) o Where it was held that the dominant tenement was used merely for convenience nad as a matter of efficiency and therefore the connection was not a real one. o However, the principal in Moody v Steggles was unsuccessfully argued in Clos Farming, where the NSW Court of Appeal held that an easement for viticulture was not valid because it did not benefit the dominant tenement in the sense of being reasonably necessary for its normal use and enjoyment, instead benefiting the owner in his personal capacity. The court held that the dominant tenement was incidental to the business rather than the business being incidental to the land (at 30-­‐34). 3. The Dominant and Servient Tenements must not be Held and Occupied by the Same Person • At general law, no one can have an easement over his/her own land (Moody v Steggles (1878). However, this does not exclude a tenant from holding an easement over his/her LL’s land (Borwan v Griffith [1930]), in which case the easement binds LL/Successors for the duration of the lease (Cardwell v Walker [2004]). • This rule is altered by statute under s 88B CA where there is registration of a plan of subdivision that will create all easements referred to in it and vest them in the owner of the land benefited by the easement (applies to both TT and OST – s 69 CA). o Where the dominant and servient tenement is the same ownership (s 88B(3)(c)(ii) CA), or where they come to be in common ownership (s 88B(3)(c)(iii) CA), they will not be extinguished. • Under s 46A(1) RPA, easements which burdens and benefits separate parcels of land may be created even though the same person is the proprietor of those separate parcels. • Under s 47(7) RPA, an affecting interest recorded in the register shall not be extinguished solely by reason of the same person become proprietor of separate parcels of land respectively budded and benefited by the affecting interest 4. Right Must be Capable of Forming the Subject Matter of a Grant • Three cognate (similar) question must be posed: o 1. Whether the rights are expressed in terms too wide and vague in character o 2. Whether rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession, and o 3. Whether rights constitute mere rights of recreation, possessing no quality of utility or benefit (Re Ellenborough Park [1956] – where a right to enjoy a park was sufficiently confined to meet this criteria) • EXAMPLES: o City Developments Pty Ltd v Registrar General Northern Territory [2000]: § Where an easement permitting use of land for recreational purposes was held to constitute a valid easement, so long as it enhances the enjoyment of adjoining properties and confers some benefit even though separated by other land (per Thomas J at 36). o Commonwealth v Registrar of Titles (Vic) (1918): § Right to general flow of air is not capable of being granted or reserved as an easement; however a right for air and light for a narrow section of a building capable of forming the subject matter of an easement. o Bass v Gregory (1890): § Right for the free flowing of air through a defined aperture considered capable of •
forming the subject matter of a grant. o Re Alfred’s Case (1610): § Right to view considered too indefinite to form the subject matter of a grant. o Browne v Flower [1911]: § Right to a protection of one’s privacy too indefinite to form the subject matter of a grant. o Miller v Jackson [1977]: § Right to hit cricket balls on to neighboring land too indefinite to form the subject matter of a grant. o Hunter v Canary Wharf Ltd [1997]: § Right to receive a television signal cannot be an easement. EXTENT of Rights Conferred • A right will not amount to an easement when the ‘dominant tenement’ has exclusive use over the subject land (Bursill Enterprises v Berger Bros Trading (1971)). The relevant test as stipulated in JEA Holdings v Registrar-­‐General of NSW is whether there remains to the servient owner a reasonable use of the servient tenement in its entirety – (as was found that JEA could use the car park and could develop its land above and below the car park, His Honour considered that it enjoyed a very substantial use of its land). • Clos Farming Estates Pty Ltd v Easton (2002) 11 BPR 20: o Where as a separate ground of invalidity, it was held that the rights of the grantee to enter the putative servient tenement in order to plant and maintain the vines, and to harvest, market, package and sell the produce were so extensive that they were inconsistent with the owner of the putative servient land retaining possession of that land. • In a recent House of Lords decision (persuasive), Lord Scott held that a servient tenement holder could grant as easement over his land to any extent he wished, subject to retaining possession and control (Moncrieff v Jamieson [2007]). o *** Moncrieff v Jamieson [2007] § FACTS: The appellant appealed against a decision that a right of vehicular access from a public road included a right to park on the servient tenement vehicles as were reasonably incidental to the enjoyment of access to the dominant tenement. § Held: A right to park could be constituted as ancillary (supplementary) to a servitude of vehicular access if it was necessary for the enjoyment of the servitude of access. It was sufficient that the use might be contemplated by the parties at the time of the grant, having regard to what the dominant tenement might reasonably be expected to do in the exercise of its comfortable use of the property. • EXAMPLES: • Re Ellenborough Park [1956]: o Conveyance of plots granted ‘the full enjoyment… at all times hereafter in common with the other persons to who such easements may be granted of the pleasure ground… subject to the payment of a fair and just proportion of the costs, charges and expenses of keeping in goods order the said pleasure ground’. o HELD: That the right to full enjoyment of grounds did not fail to qualify as an easement due to absence of connection between enjoyment and premises to which enjoyment was expressed to belong; park accommodated and served the premises entitled to the right. Right was not of joint occupation and there was nothing repugnant to a man’s proprietorship or possession of land. A right to enjoy park was sufficiently confined to meet requirement to form subject matter of a grant. • *** Clos Farming Estates Pty Ltd v Easton [2002] Vendor reserved an easement by the following terms (entitled ‘Fourteenth Restriction’):