LLB220 Study Guide - Final Guide: Supreme Court Of The Australian Capital Territory, Jargon, State Transit Authority
Easements & Profits:
DEFINITIONS:
Easement: limited rights that non-occupiers of land hold over land occupied by another, for
the benefit of the dominant tenement
Easement in gross: limited right, providing benefit for the entire community from land
occupied by another individual
Dominant tenement: individual whose land receives the benefit of the easement
Servient tenement: individual whose land provides the benefit, or more accurately bears
the burden
Positive easement: allows the non-occupier to do something
Negative easement: restricts what the owner of the servient tenement may do on his or her
land
1. Have the substantive elements been met? – Re Ellenborough Park
a. Must be a dominant and servient tenement
Dominant tenement: land that is benefited
Ask whether this is something the owner needs – Re Ellenborough
Easements in gross – give benefit to the entire community
Not sufficient to establish dominant tenement
Only allowed pursuant to s 88A of Conveyancing Act
Cannot merely benefit owner personally:
‘a right enjoyed by one over the land of another does not
possess the status of an easement unless it accommodates
and serves the dominant tenement, and is reasonably
necessary for the better enjoyment of the tenement, for it has
no necessary connection therewith, although it confers an
advantage upon the owner and renders his ownership of the
land more valuable it is not an easement at all, but a mere
contractual right personal to and only enforceable between the
two contracting parties’ – Re Ellenborough Park
Do not need to share a boundary, but there must be sufficient nexus –
Re Ellenborough Park
b. The easement must accommodate the dominant land
Not sufficient to show an increase in property
UNLESS can also show a necessary increase in the enjoyment
Accommodation of businesses – ‘the trade must be necessary
incident to the normal enjoyment of the land, not merely an
independent business exercise’ – Clos Farming Estates
c. The dominant and servient tenement must be different persons
Only applies if the same person is in occupation – can exist between a
landlord and a tenant
S 88B of Conveyancing Act – registration of a plan of subdivision
allows for easements
S 46A, 47(7) of Real Property Act – applies to Torren’s land
d. The right created must be capable of forming the subject matter of a grant
find more resources at oneclass.com
find more resources at oneclass.com
a.i. Right must be sufficiently definite
Cannot be too vague – right to view, right to protection, ‘mere’
rights to recreation (Re Ellenborough)
Must be specific
a.ii. Cannot be inconsistent with the continuing possession or
proprietorship of servient owner – Clos Farming Estates [35] onwards
If rights of dominant tenement are so broad as to limit servient
owners it will not be allowed
IF THE CONDITION IS NEGATIVE AND DOES NOT MEET EASEMENT REQUIREMENTS, IT MAY
BE A RESTRICTIVE COVENANT
2. Have the formal elements been met?
a. Is it an easement by express grant?
Occurs are the time of purchase
Old system land:
Must be created by deed – s 23B of Conveyancing Act
May be enforceable in equitable –
oEnforceable agreement to grant (writing or oral and
supported by past performance) – Walsh v Lonsdale
oSubstantive elements must be present
Old system – equity:
Enforceable agreement to grant gives rise to an equitable
easement – Walsh v Lonsdale
Must satisfy s 54A(1) or have substantial acts of part
performance
Valid against successors who purchase without notice
Torrens land:
Easements must be registered – s 46 of Real Property Act
Noted on folios of both properties
Equitable easements may exist but these are vulnerable due to
s 43 of Real Property Act
b. Is it an easement by express reservation?
Occurs when part of land is granted to another and an easement is
reserved
Old system land:
Legal easement – s 45 of Conveyancing Act
Equity – enforceable agreement to reserve – Walsh v Lonsdale
Torren’s land:
Same as express grants
Easements can be created through the registration of a s 88B plan of
subdivision (Conveyancing Act)
Applies to old system and Torrens land
S 88(1) of Conveyancing Act
c. Is it an implied easement?
c...a.i. Rule established in Wheeldon v Burrows (1879)
Grant of part of land ie severing of ownership
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Easement: limited rights that non-occupiers of land hold over land occupied by another, for the benefit of the dominant tenement. Easement in gross: limited right, providing benefit for the entire community from land occupied by another individual. Dominant tenement: individual whose land receives the benefit of the easement. Servient tenement: individual whose land provides the benefit, or more accurately bears the burden. Positive easement: allows the non-occupier to do something. Re ellenborough park: must be a dominant and servient tenement. Ask whether this is something the owner needs re ellenborough. Easements in gross give benefit to the entire community. Only allowed pursuant to s 88a of conveyancing act. Do not need to share a boundary, but there must be sufficient nexus . Re ellenborough park: the easement must accommodate the dominant land. Not sufficient to show an increase in property. Unless can also show a necessary increase in the enjoyment.
