Easements and Profts

1. Easements and Profts Cameron Stewart Thanks to Jim Helman and Sahe McCrystal – errors are mine

2. What is an easement? • Halsbury’s Laws of England: A right annexed to land to utilise other land of different ownership in a particular manner (not involving the taking of any part of the natural produce of that land or any part of its soil) or to prevent the owner of the other land from utilising his land in a particular manner. • Corporeal rights – those things that are tangible eg. land • Incorporeal rights – those things that are intangible eg. easements and other legal rights.

3. Positive easments • An easement may be a positive easement - a right to do something on someone else's land. Examples of recognised positive easements include: • the right to place electricity and telephone wires over neighbouring land; • a right of way over a neighbour's land; • the right to discharge water onto neighbouring land from a drain; • the right to fix a signboard on a neighbour's land.

4. Negative easments • An easement may also be negative, which restricts what the neighbour can do on his or her land. Examples of recognised negative easements are: • an easement of light to receive light for a certain window; • an easement of air, to receive air through a defined channel like a ventilation shaft; • an easement of flow of water, to receive a flow of water along the waterways - ie the neighbouring owner cannot block the flow of water.

5. Easements are not... • Natural Rights – Rights that are incidental to land ownership and automatically arise in the bundle of rights attaching to a freehold estate. You don’t have to acquire them – they just automatically attach. • Right to support for land in its natural state (not built on – right not to have earth undermined); • Right to the flow of water. Any other rights necessary to enjoy the land must be acquired as easements. • Personal Rights – rights enforceable in contract that don’t attach to the land – for example a licence to enter land for a certain purpose. • Exclusive possession – that’s a lease

6. Four characteristics Four essential characteristics: Considered in Re Ellenborough Park [1956] 1 Ch 131 • must be a dominant and servient tenement. • the easement must accommodate the dominant tenement. • can't be common ownership of the dominant and servient tenement (but see the Conveyancing Act and section 88B). • the right must be capable of forming the subject matter of a grant.

7. Dominant and servient tenement • The easement cannot be for the benefit of a person. • It must be for the benefit of another piece of land, the dominant tenement. • If the benefit merely flows to a person, then it is a licence, not an easement. • Ascertaining whether or not a right is attached to the dominant tenement or is merely a personal right requires construction of the instrument which created the right

8. Dominant and servient tenement • Whether it creates a right which affixes to land – is it meant to be enforceable against all the world? Is it something that the owner of the dominant tenement will need / want for the enjoyment of that land? (easy to demonstrate for example in the case of a right of way for landlocked land). • What land is intended to be the dominant tenement?- if this is not clearly identifiable from the instrument – extrinsic evidence may be adduced to ascertain this, but only on the basis of ‘objective factors’ like layout of the land and actual use at the date of the granting of the easement

9. Dominant and servient tenement • This position has been altered in relation to some easements classified as ‘easements in gross’ created pursuant to section 88A of the Conveyancing Act 1919.

10. Accommodation of the dominant tenement • There must be a connection between the easement and the enjoyment and occupation of the dominant tenement. In other words the easement must confer a benefit upon the dominant tenement. • The benefit conferred must be connected to the land of the dominant tenement and not just be a personal privilege or commercial advantage accruing to the current owner of the dominant tenement

11. Accommodation of the dominant tenement • The crucial question here is whether the privilege provided by the easement has a ‘necessary connection’ with the land: is the easement reasonably necessary for the better enjoyment of the dominant tenement as a parcel of land?

12. Accommodation of the dominant tenement • Must it be adjoining land? No but probably needs to be close to get benefit • Re Ellenborough Park [1956] 1 Ch 131 • Estate created in 1855 • The purchasers of the land adjacent to the park and other blocks within 100 metres of the park were given rights to use the park as ‘pleasure ground’ provided that they contributed to its upkeep. • During WWII the military had occupied the park and then paid the owner of the park compensation for use • Should the owners of the houses (who had long since changed from the original grantees) get some of the compensation as they had been denied their rights under their easements?

13. Accommodation of the dominant tenement There were two main issues in the case: • Could a right to a ‘pleasure ground’ constitute an easement? Did it ‘accommodate’ the dominant tenement? • Could the owners of the land not directly bordering the park also claim an easement given that they were not directly next door?

14. Accommodation of the dominant tenement • How do you show accommodation? Lord EvershedMR @ 173: It is not sufficient to show that the right increased the value of the property conveyed, unless it is also shown that it was connected with the normal enjoyment of that property. It appears to us that the question whether this connexion exists is primarily one of fact, and depends largely on the nature of the alleged dominant tenement and the nature of the right granted. • Was the right to use the pleasure park connected to the use and enjoyment of the houses that the right had been granted to? The court said yes because the park was intended to be a garden for these properties – use of a garden enhances and is connected to the normal use and enjoyment of land – so is capable of forming an easement.

15. Accommodation of the dominant tenement • What about the second issue: the houses that did not border the park? • Easements were also found to have attached for these houses as well because, despite the fact that they were not directly next to the park, the nexus between the use and enjoyment of the park and their land could still be found.

16. Accommodation of the dominant tenement • Land that has the benefit of an easement may be subdivided and each part of the subdivided land has the benefit of the easement. • Land that is consolidated does not confer on any part of the land that does not have the benefit of the easement any rights it did not have before.

17. Accommodation of the dominant tenement • Gallagher v Rainbow (1994) 179 CLR 624 • Private Road jointly owned by lots 14, 15, 16, 17. Each have ¼ ownership and an easement to use the other ¾ of the road (cross easements). The owners of 2 of the lots decide to subdivide into 3 smaller lots. The owner of 1 of the lots that was not going to be subdivided brought an injunction to restrain the owners of the lots to be subdivided from using the easement to carry out the subdivision. She argued that the easement only applied to the larger lot and if it was subdivided then it would not attach to the smaller subdivided components. (In this way hoping to prevent the subdivision because she would then refuse permission for the owners of the subdivided lots to use her ¼ of the road).

18. Accommodation of the dominant tenement • Per Brennan, Dawson and Toohey JJ at 633 – An easement is no mere personal right; it is attached to the dominant land for the benefit of that land. To the extent that any part of the dominant land may benefit from that easement, the easement will be enforceable for the benefit of that part unless the easement, on its proper construction, benefits the dominant land only in its original form. • In this case, the easement would attach to each of the new subdivisions because the easement provided access for all of the land of the dominant tenement and was not one that could only benefit the whole dominant tenement in its original form.

19. Accommodation of the dominant tenement • Frater v Finlay (1968) 91 WN (NSW) 730 • Easement to receive water with obligation to pay half the cost of keeping the well and pipes and tanks and equipment in good order and condition • Two easements or one? • Cannot, in itself, amount to an easement independent and separate from the easement to receive water.

20. Accommodation of the dominant tenement Newton DCJ: Viewed on its own, the obligation to contribute could not comply with the second essential of an easement, namely that it must accommodate the dominant tenement. This means that what is required is that the right “accommodates and serves the dominant tenement and is reasonably necessary for the enjoyment of that tenement; for if it has no necessary connection therewith, for 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 enforceable between the two contracting parties”.

21. The dominant and servient tenement must not be held and occupied by the same person • You cannot have an easement over your own land • Statutory exceptions to this rule now exist: • CA s 88B – Recording or registering a plan of land indicating an easement creates an easement even if the dominant and servient tenement are in the same ownership (old system or Torrens). • RPA s 46A –Allows owner of common land to register easements with respect to that land; Also not s 47(6) provides that easements recorded on Torrens Register are not extinguished because land comes into common ownership.

22. The right must be capable of forming the subject matter of a grant • What sort of rights can be easements? • The right cannot be too broad or imprecise. It has to be defined sufficiently well to be capable of constituting an interest in the servient tenement. • Re Ellenborough Park [1956] 1 Ch 131 – mere right of recreation? No - defined utility • Riley v Penttila [1974] VR 547. A subdivision for residential development included an area “for the purposes of recreation or a garden or a park” and the Victorian Supreme Court held that the right granted to the owners of the surrounding residential blocks to use the communal area was an easement.

23. The right must be capable of forming the subject matter of a grant • Courts will be kinder to express easements • Jackson v Mulvaney [2003] 1 WLR 360 per Latham LJ at 368 – “the court will undoubtedly lean in favour of the creation of an [express] easement if the intention of the parties was clearly to that end”.

24. The right must be capable of forming the subject matter of a grant Rights that can be too vague: • Free flow of air – how do you define it? What are its boundaries? Won’t be too vague if the right is to air from a defined channel; • Protection from television interference; • Protection of privacy; • Protection of a view; • Protection from the weather.

25. The right must be capable of forming the subject matter of a grant • Easements cannot be granted that have the effect of giving rights of exclusive possession or control to the owner of the dominant tenement over the servient land, or even rights to share ongoing possession. If the substance of the right granted amounts to a grant of exclusive possession – the right is really a grant of possession over the land which is a different interest.

26. The right must be capable of forming the subject matter of a grant • Degree of possession/judicial interpretation – fact scepticism. Eg’s from Butt: • A right to store goods in a cellar was not an easement because it amounted to a grant of possession but a right to store coal in a shed was an easement; • A right to run electricity wires over land which prohibited the owner from building or planting trees under the wires was not an easement; but a right to run pipes underground is.

27. The right must be capable of forming the subject matter of a grant • Copeland v Greenhalf [1952] 1 Ch 488 - right to park trucks – Upjohn J: I think that the right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or the occupier of a dominant tenement over a servient tenement. This claim (to which no closely related authority has been referred to me) really amounts to a claim to a joint user of the land by the defendant. Practically, the defendant is claiming the whole beneficial user of the strip of land on the south-east side of the tract there; he can leave as many or a s few lorries there as he likes for a s long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject-matter of an easement.

28. The right must be capable of forming the subject matter of a grant • Moncrieff v Jamieson [2007] 1 WLR 2620 – Land A was a small cottage at the bottom of a cliff. The only access to the cottage was by boat or by means of stairs in the cliff, leading to a private road which led to a public road. • The cottage had an easement attached to use the private road. • Could the easement extend to a right to park on the servient land at the top of the hill or did it only allow the owner of the dominant land to drive across the land? • Was a right to park capable of being an easement or did it amount to a grant of exclusive possession?

29. The right must be capable of forming the subject matter of a grant Judges conceded that the grant of the easement DID have a right to park attached to itthe parties creating the grant would have intended that there be a right to park included with the right – as a necessary incident of the grant. But was it possible to make such a grant?

30. The right must be capable of forming the subject matter of a grant Lord Hope of Craighead (Lord Mance in agreement) – there seems to be no fundamental objection to an easement which excludes the owner of the servient tenement from part of his property while the easement is being exercised. Doesn’t go much further than saying that there is no fundamental objection to such a grant.

31. The right must be capable of forming the subject matter of a grant Lord Scott of Foscote – Lord Scott finds that a grant of ‘exclusive possession’ over an area of a servient tenement cannot be an easement. However, he finds that there was no such grant here. Instead, he finds that the grant of a right to park is a grant of ‘sole use’ of the parking area at any time that the owner of the dominant tenement chooses to park there. This distinction between possession and sole use is drawn by Lord Scott by pointing out that the right of the dominant tenement holder to park on the land of the servient owner does not prevent the servient owner from also using the land – from also parking on the land or from building over the land etc etc. It just stops them doing anything to the land that would prevent the dominant owner from parking there.

32. The right must be capable of forming the subject matter of a grant • Lord Neuberger of Abbotsbury – Not satisfied that an easement is prevented from being an easement simply because the right granted would involve the servient owner being effectively excluded from the property. Here Lord Neuberger agrees with Scott’s distinction between the exclusive occupation of the property provided the servient owner retains possession and control. However, Lord Neuberger does something a little strange. He indicates that if the right to park is a right to park in a large space, such that the servient owner is not precluded from one particular spot of the land all the time – instead, the car could be parked in any number of spots – then that is fine. However, he says that if the space is only large enough for one car and the car must be parked in that one spot, it might not be capable of forming an easement as this would exclude the servient land owner.

33. Express Creation • Express easements – Old system land • At law, easements over land under the old system must be created by deed. Section 23B Conveyancing Act. • Easements not validly created by deed may still be enforceable as 'equitable easements' but the requirement to show the four matters referred to in Re Ellenborough Park still exists. • Mere writing will be sufficient to create an 'equitable easement' over old system land. Section 23C Conveyancing Act. Part performance might also found a right to an 'equitable easement' if sufficient evidence can be produced. Sections 23E and 54A, Conveyancing Act.

34. Creation of Easements • When old system land is conveyed, the CA s 67 deems the conveyance to include any easements attached to the land unless a contrary intention is expressed (don’t have to use old forms of conveyance).

35. Creation of Easements • Express grant in Torrens • Torrens – RPA s 46 provides for the creation of easements through execution and registration of an approved form of transfer. The easement is noted on both the folios of the burdened and benefited land. Registration confers indefeasible title on the easement (RP Act s 47). A transfer of an interest under Torrens vests all relevant interests including easements in the transferee without the necessity of using specific words (RP Act s 51).

36. Conveyancing Act s 88(1) (1) Except to the extent that this Division otherwise provides, an easement expressed to be created by an instrument coming into operation after the commencement of the Conveyancing (Amendment) Act 1930 , and a restriction arising under covenant or otherwise as to the user of any land the benefit of which is intended to be annexed to other land, contained in an instrument coming into operation after such commencement, shall not be enforceable against a person interested in the land claimed to be subject to the easement or restriction, and not being a party to its creation unless the instrument clearly indicates: (a) the land to which the benefit of the easement or restriction is appurtenant, (b) the land which is subject to the burden of the easement or restriction: Provided that it shall not be necessary to indicate the sites of easements intended to be created in respect of existing tunnels, pipes, conduits, wires, or other similar objects which are underground or which are within or beneath an existing building otherwise than by indicating on a plan of the land traversed by the easement the approximate position of such easement, (c) the persons (if any) having the right to release, vary, or modify the restriction, other than the persons having, in the absence of agreement to the contrary, the right by law to release, vary, or modify the restriction, and (d) the persons (if any) whose consent to a release, variation, or modification of the easement or restriction is stipulated for.

37. Conveyancing Act s 88(1) • Papdopolas v Goodwin [1982] 1 NSWLR 43 is authority for the proposition that ‘clearly indicate’ means ‘point to’ rather than ‘state’. Therefore as long as the land benefitted and burdened can be clearly identified from the instrument, this will be sufficient.

38. Express reservation • Reservationoccurs when a landowner grants away part only of her/his land and reserves an easement in favour of the retained land (the dominant tenement) over the land granted away (the servient tenement). • The term ‘reserve’ is a little misleading. In reality what happens is that the owner of the dominant tenement sells the fee simple in the servient tenement. At the same time, the new owner of the servient tenement makes a grant of an easement back. • s 44A of the CA validates reservations contained in the transfer of the fee simple.

39. Easements created through law • Easements created by statutes for public utilities • Section 88K Easements –the court has a right under s 88K to force a right to use land where it is reasonably necessary in the interests of the effective use of the neighbouring land. • Easement must be ‘reasonably necessary’: this means that the easement must be reasonably necessary for the use of the dominant land not just for the convenience of the RP of that land. Reasonable necessity is not absolute necessity – so it doesn’t have to be the absolutely only option; but it should be necessary and the most reasonable option in the light of other possible solutions to the need for the easement.

40. Easements created through law • 117 York St Pty Ltd v Proprietors of Strata Plan No 16123 (1998) NSWLR 504 – This case involved a dispute over easements in a redevelopment. • The owners of 117 York St wanted to pull down an existing building and build a new building that would cover the entire block. • They needed three easements over a neighbouring block of apartments – an easement to construct a scaffold along the boundary of the land to build the wall on the boundary, an easement to allow a gutter to hang slightly into the airspace of the neighbour and an easement to swing a crane into the airspace of the neighbour to construct the building. • Negotiations proceeded amicably, but got stuck on the crane. The owners of the building approached the council to find other places to put the crane, but all involved blocking major CBD roads and the requests were refused. They could have used an internal crane at a cost of $250 000 extra – but this was very expensive. Negotiations broke down. The builders thought that $20 000 was fair compensation for the right to swing the crane; the neighbours wanted $400 000 (they’d worked out what an internal crane would cost – and factored it in). The matter ended up in court because they couldn’t agree and the owners of York St sought an easement under s 88K.

41. Easements created through law • Hodgson CJ at 508-509 stated that the phrase in s 88K(1) of the CA “if the easement is reasonably necessary for the effective use or development of other land” means: • In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable used or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses or developments; and (2) in order that an easement be reasonably necessary for a use or development, that use of development with the easement must be (at least) substantially preferable to the use or development without the easement.

42. Easements created through law • Hodgson J found that the construction of a building which extended to the boundaries of the land was a reasonable use of the land as compared with other options (not building to the borders or making a smaller building) and the easements were reasonable for that purpose; Also, development with the easements was preferable because otherwise it would cost another $250 000 and the inconvenience to the neighbour was minor. Easement granted; compensation awarded = $23 000

43. Implied easements • Common law doctrine • An implied easement arises when the common law implies the grant or reservation of an easement when no easement was expressly granted. The common law may imply a grant or reservation of an easement into a conveyance from the presumed intentions of the parties. There are a group of circumstances in which it is established that the law will imply an easement

44. Implied easements • Abutting Road • Common intention • Non-derogation from grant • Continuous and apparent easements • Easements by necessity

45. Abutting Private Road • Where a conveyance or lease of land is made and is described as abutting a private road owned by the vendor there will be an implied easement for use of the road. Of very limited use now as very few private roads still exist. • Applies to Torrens land

46. Abutting Private Road • In Dabbs v Seaman (1925) 36 CLR 538 the High Court considered whether Emily Dabbs was entitled to a right of way over land adjoining the land owned by her and marked on her Certificate of Title as “20 feet lane”. Isaacs J: When the mists of irrelevancy disappear, the question resolves itself into the following proposition, which I hold to be good law and to be absolutely necessary if titles under the Real property Act are to be indefeasible: Where A, a registered proprietor of land under the Real Property Act, transfers to B a part of his land described by a plan indicating that the transferred land is bounded on one side by a 20' lane situated on the other part of the transferor's land and the transfer is duly registered, the, in the absence of either a provision to the contrary on B's certificate of title or some subsequent personal legal or equitable relation to the contrary between B and the owner of the adjoining land, B, so long as he remains the registered proprietor of the land so transferred and described, is entitled (1) to have the land marked “20 feet lane” preserved as such, and (2) to a right of way over the lane. Limited to where the road is also Torrens land: Cowlisaw v Ponsford (1928) SR(NSW) 331 at 336

47. Common Intention Easement • Where both parties to a grant share a common intention as to the use to be made of the land by the grantee and an implied easement is necessary to give effect to that common intention (common intention easement). • The reverse applies where implication is needed to give effect to the parties common intention as to the use of the reserved land by the grantor. • Courts are jealous of these because grantor should have made an express grant and will only find them where necessary (for example – grant of a house with shared wall – easement of support for grantor).

48. Non Derogation from Grant • Under the doctrine of ‘non derogation from grant’ easements may be implied by the court in circumstances where a grantor grants land to a grantee for a specific purpose and that specific purpose requires some sort of easement over neighbouring land held by the grantor. In these cases the easement is granted to stop the grantor from doing something on retained land that makes the land disposed of unfit or materially less fit for the intended use. The parties must have contemplated that the intended use of the land would require some sort of easement over the retained land (Nelson v Walker (1910) 10 CLR 560).

49. Continuous and Apparent Easements • Wheeldon v Burrows (1879) 12 Ch D 31 the Court considered an application for an implied reservation of a right to light arising from the sale of land. • Allen owned adjoining lots. On one lot he built a shed which had three windows on the side for light and which was on the border of his property. Allen sold the property that bounded the shed. A dispute arose years later between the owner of the neighbouring property who wanted to build in a manner which would completely block the light to the shed and the present owner of the shed claimed that he had a continuous and apparent easement for light through the windows.

50. Continuous and Apparent Easements • Thesiger LJ at 49 stated the principle for continuous and apparent easements as: • [O]n the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granteddows.