MLL327 Study Guide - Final Guide: Hereditament, Incorporeality, Ophanim
24 May 2018
School
Department
Course
Professor
Property Law Topic Nine
• appreciate the proprietary nature of an easement
• Rights which automatically flow from the natural character of the land
• Examples:
• Right to take advantage of natural resources on land
• Right to take advantage of light on property
• Right to the flow of water on the land
• Right to the shades of trees from the land
• Passes automatically with natural state of land
• Easements are created to add to natural rights associated with land
• Easements evolved from Roman law servitudes
POSITIVE OR NEGATIVE EASEMENT:
• Two groups:
– Positive easement: confers upon owner of dominant land the right to carry out certain
activities over burdened land
• Right of way
• Right to discharge water
– Negative easement: prevents the owner of the burdened land carrying out certain activities
• Right to flow of air through a defined aperture
• Right to receive water through pipes
• Right to receive light
• Right to support for a building
– Courts are reluctant to extend category of negative easements because it would interfere with
proprietary rights of the servient tenement owner
• be able to distinguish an easement from other types of rights which relate to the land
• An easement is the right to use a eighous lad ithout possessig it
• An easement does not constitute a right of possession associated with ownership
• It s a right annexed to land to use soe othe pesos lad i a patiula ae o to prevent the
owner from using it in a particular manner
• Right annexed to land: right taken from one estate and grafted to another estate
• It is a right which is enforceable over one piece of land (servient tenement) which may be utilised by
owner of another piece of land (dominant tenement)
• Easement is created for the benefit of the dominant tenement and burdening the servient tenement
• Holder of an easement holds a fee simple estate over dominant tenement and an incorporeal right over
servient tenement
• Easement is an intangible interest in land
• Easement is a proprietary right enforceable in rem
• Incorporeal hereditament
• Does not involve taking of natural produce of land or part of soil
find more resources at oneclass.com
find more resources at oneclass.com
• understand the requirements for the valid creation of an easement
Four the valid creation of an easement there are four elements are:
• There must be a dominant and servient tenement
• Must be dominant (benefited) land and servient (burdened) land
• Dominant and servient tenement need not to be contiguous
• Proprietary interest runs with the dominant land benefiting successors in title and
burdening successors in title of servient tenement
• An easement which confers no specific benefit on land (absence of dominant
tenement) is known as an easement in gross
• Common law easements cannot be in gross
• Statutory easements can be in gross: eg s187A Local Government Act 1989 (Vic)
entitles the council to create an easement without a dominant tenement for benefit
of council
• Easement must accommodate/benefit the dominant tenement
• Easement must accommodate dominant tenement rather than personal rights of
owner of dominant tenement
• Must be of benefit to dominant tenement rather than to its owner: making the
dominant tenement a better and more convenient property: easement is
appurtenant to the dominant tenement
• Ex, an annual pass to attend cricket at MCG to owner of nearby house is not easement
• Fundamentally a land interest: right enforceable against land to provide a benefit to
the dominant tenement
• Otherwise, it will lead to a proliferation of rights
• Easement must be connected with the enjoyment and benefit of the dominant
tenement as land
• Claimed right must be reasonably necessary for the better enjoyment of the
dominant tenement
• Whether connection between tenement and right – factual question depending on:
• Nature of dominant tenement
• Nature of right claimed
• Dominant tenement must be sufficiently proximate or benefit must be sufficiently
tangible
• Right which provides a commercial advantage but unrelated to land, easement will
not be created
• Rights relating to business conducted on the land rather than the land itself cannot
be regarded as right which accommodates the dominant tenement
• Rights to use and enjoy boats for recreational purposes on canal which abutted
dominant tenement was unconnected with physical enjoyment of land (Hill v Tupper)
• If a right enhances the value of the dominant land or affects way land is used,
requirement will be met
• Whether connection with land in sense of being reasonably necessary for better
enjoyment as a parcel of land
• Dominant and servient tenement must not be owned and possessed by the same person
• Both tenements must not be owned and occupied by the same person
• Oe aot hae easeet oe oes o lad
• No need for easement when both properties are owned by the same person
• If dominant and servient tenement are held in same ownership, easement is
extinguished
• BUT where person owns both properties but not in possession of both, may be
easement
• Eg Owner of servient tenement leases out dominant tenement, the lessee may
acquire easement rights over servient tenement for duration of lease
• Right must be capable of forming the subject matter of a grant
find more resources at oneclass.com
find more resources at oneclass.com
• Right must be capable of forming a subject mater to which an easement may relate
• All property interests must be ascertainable
• Right claim must be sufficiently precise and certain
• Must not be too vague and wide in character:
• Confer uncertainty on the owner of the servient tenement as to scope of
activities and rights
• Not reasonably necessary to the use and enjoyment of dominant tenement
• Examples: protection from weather, privacy, a right to a view, right to
general flow of air or mere right of recreation or amusement would be
uncertain
• Consideration is whether level of uncertainty would be fatal
• Must have some degree of permanence and stability
• Ius spatiandi: ight to oa o ade at lage oe a aothes field/pak is
generally incapable for forming the subject matter of easement
(Re Ellenborough Park; accepted as part of Australian law in Riley v Pentilla)
ELLENBOROUGH PARK
FACTS
• Land surrounding a park was sold in lots to individual purchasers. Purchasers
acquired a fee simple plus easement for the use of roads and footpaths made
on the estate and an easement of full enjoyment of the pleasure ground set
out and made in front of plots of land in the centre of a square called
Ellenborough park. Park was sold and new owners wanted to build on it
HELD
• Held: Right to use the park was an easement and binding on the new owners
• Reasoned: Right to use and enjoy garden valid form of recreation over land and
should be contrasted with mere right to roam and wander over the land
• Right was definable because it was appurtenant to a private residence and
provided a clear utility and benefit to the dominant tenement
• Beneficial attribute rather than a recreational right
• Nothing repugnant to maintain area of land as a private garden
• Communal right of enjoyment of park sufficiently related to the ordinary use
by residents of neighbouring houses
RILEY V PENTTILA
FACTS
• Subdivided land included a common reserve. All lot owners were given an
easeet to ejo the esee fo the pupose of eeatio o a gade o a
pak The defedat puhased a lot ad eaated fo a siig pool i
part of the reserve. Plaintiff owner of lots asked for declaration of rights
ISSUE
• Was the easement too vague/uncertain?
HELD
• Recreation rights can be valid subject matter for an easement, but limited to
reasonable use.
• It was not a jus spatiandi but a defined, private right of recreation
• Right was created expressly by legal grant
• More than a mere personal advantage granted to transferees
find more resources at oneclass.com
find more resources at oneclass.com
