LAW 1506 Lecture Notes - Lecture 7: Re Ellenborough Park, Easement, Unregistered Land In English Law
23 May 2018
School
Department
Course
Professor
Regulating land use between neighbours
Possible scenarios
• Permanently taking something from neighbouring land- profit a pendure
• Right to enter/ do something on burdened land which does NOT amount to exclusive
possession- easement
• Right not to do something (obstruct view) - RC
• Terms in c*s enforced against future proprietors
o FREEHOLD - no privity of contract- but can use restrictive covenants to enforce through
equity (registered and unregistered land)
o LEASEHOLD: enforce term in leased through doctrine of privity of estate
EASEMENTS AND PROFITS A PENDURE
• Exist in law or equity, depending on formalities of creation. S 3 RPA
• Incorporeal hereditaments- no possessory interest in land
Easements
1. Right for one land owner to do something on adjacent land of another
a. Positive: confers upon LO right to make use of land (right of way, parking, storage, for pipes
and wires to pass; fencing; floating easements)
b. Negative: confers upon LO right to prevent their neighbour from engaging in a specified
activity on their own land
i. Limited categories, more likley to be RC
ii. Right to light, air, support
2. Identify and separate each possible easement for separate consideration
a. Support- retaining wall
i. May also have an easement on the basis of necessity to access retaining wall
b. Easement for light
c. Access- walking track/ road
3. Four requirements Re Ellenborough Park
1. Must be a dominant and servient tenement
i. Two pieces of land: parcel of land burdened by easement (servient) in the vicinity and
annexed to the burdened land which is benefited (dominant)
ii. Should be no imposition of expenditure on the servient owner
• Exception for support, fencing (Fences Act 1975 (SA)).
iii. The land (dominant tenement) must be identified Gapes v Fish or it will be a personal
right (licence) A Victor Leggo
• Exception: Easements in gross (no need for grantee to have land to be benefited)
may exist in favour of Crown for public utility cables s 41A LPA
2. an easement must "accommodate" the dominant tenant
i. Harada v Register of Titles: easements facilitate the occupation, use and enjoyment
of particular pieces of land. Primary Q asked by courts is to what extent does an
alleged easement perform these functions?
1. Q of fact- turns on whether E is reasonably necessary for enjoyment of the
dominant tenement and not for convenience/ personal use of dominant owner Hill
v Tupper
2. May vary over life of E, provided variation is for the benefit of the dominant land-
unless the E expressly benefits the land ONLY in its original form Gallagher
3. Not enough that the easement merely adds to property value
3. the dominant and servient owners must be different people; and
4. the right must be capable of being the subject matter of a grant.
i. Cannot be too vaguely expressed or delineated or for pure recreation
• But Riley v Pentilla
ii. Must be within (or analogous to) known category of E
find more resources at oneclass.com
find more resources at oneclass.com
0. Right of way
1. Right of support
2. Right of air or light
3. Fencing
4. Floating easement
5. Must not amount to exclusive possession of the S-O's land
i. If it does, it is a lease
ii. Examples
0. Parking and storage cases Copeland v Greenhalf
1. Extent of activity alleged to constitute an E took away S-O's right to EP Clos
Farming
4. Creation
• Key indicators
o Grant: no transfer, owners are the same; or right to do something
• Must benefit dominant, and not other, land, and not pure personal advantage to
dominant land Westfield
o Reservation: sale, transfer, subdivision- seller reserves a right. Buyer gets a burden not to
do something
• upon sale, seller reserved rights over retained dominant land against the land sold
servient (must be for the benefit of the land) CLEAR THAT SOMETHING IS HELD BACK BY
THE SELLER
c. EXPRESS GRANT OR RESERVATION
i. Any person may grant or reserve an easement to the extent that the grant is consistent
with their proprietary interest in the servient tenement
ii. General law: conveyed by deed s 28(1) LPA
iii. Torrens system: instrument creating an express grant or reservation my only be
conveyed by deed s 53(7) RPA
iv. Common law: no easement can exist by reservation unless a conveyance containing the
reservation is executed.
v. Mortgagee exercising a power of sale may grant an easement s 47(1)(a) LPA
vi. if formalities not complied with E becomes EQUITABLE
d. IMPLIED GRANT- subdivided land only
. Wheeldon easement
1. Easement will exist when a parcel of land is granted through subdivision and prior
to the severance, the granted land had the benefit of a particular right or 'quasi
easement'
a. Has there been a subdivision?
b. What was the benefit that existed prior to the grant?
i. Must be CONTINUOUS in the sesse that it is PERMANENT;
ii. Must be a feature that is not transitory or intermittent
• Right of way; easement of watercourse; light
2. Must be established that the easement is 'necessary, to the reasonable enjoyment
of the property granted' an easement which is probably necessary or even
convenient will satisfy this.
a. Is the easement necessary?
i. Must be
• Necessary to the enjoyment of the benefited land; or
• Necessary to the enjoyment in a reasonable manner of some
permanent feature or part of the land
3. Easement must have been used by the grantors for their benefit AT THE TIME OF
THE GRANT
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Easements and profits a pendure: exist in law or equity, depending on formalities of creation. Easements: right for one land owner to do something on adjacent land of another. Two pieces of land: parcel of land burdened by easement (servient) in the vicinity and annexed to the burdened land which is benefited (dominant) Should be no imposition of expenditure on the servient owner: exception for support, fencing (fences act 1975 (sa)). Examples: parking and storage cases copeland v greenhalf, extent of activity alleged to constitute an e took away s-o"s right to ep clos. Buyer gets a burden not to do something: upon sale, seller reserved rights over retained dominant land against the land sold servient (must be for the benefit of the land) clear that something is held back by. Any person may grant or reserve an easement to the extent that the grant is consistent with their proprietary interest in the servient tenement.
