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Week 9 Easements, Profit a Prendres and Freehold Covenants, Easements,…

- - - - In order to establish that the easement right has been abandoned it must be demonstrated that the easement right is not being used and that the dominant tenement no longer has an intention of using the easement. In this respect mere non-use is not sufficient, that is, there must be some intention of non-use.
- - - - The easement must accommodate the dominant tenement. In accommodating the dominant tenement the easement must in some way benefit the dominant tenement. In other words, the dominant tenement must be made a better property (i.e. there must be a connection between the easement and the land itself) because of the existence of the easement.
      - see also; Clos Farming Estates v Easton [2002] NSWCA 389
    - - Roe v Siddons (1888) 22 QBD 224 at 236; Bond and Leitch v Delfab (1980) 26 SASR 462: (RPLIQ 5th edition 2020) [15.70].
        
        At common law, a person cannot grant land or an interest in land to her or himself or contract with her or himself.
        
        Therefore, if the owner of a block of land is in the habit of walking over another block of land owned by that person, that person is not exercising a right of way, but is simply using her or his own land
        
        As suggested above in Queensland the rule has been abrogated.
        
        Ss 86-88 LTA
        
        s 14(3) of the PLA
        
        “Section 14(3) of the Property Law Act 1974 and s 86 of the Land Title Act 1994 are particularly useful where a developer subdivides an estate and wishes to create and register easements before any of the lots are sold.”
    - - See Gas & Fuel Corporation of Victoria v Barba [1976] VR 755
        
        There must be a dominant tenement and a servient tenement. The dominant tenement is land which is benefited by the easement from the servient tenement. Conversely, the servient tenement is burdened by the existence of the easement.
      - Formal requirements for creation of easements (high density development easement)
        
        Ss 93 and 95 LTA
      - Easements in gross - exception to this rule i.e. items like sewage easements, power, water etc
        
        s 89 LTA
    - - Regency Villas Title Limited v Diamond Resorts (Europe) Limited [2015] EWHC 3564 (Ch)
      - Riley v Penttila [1974] VR 547
      - There is overlap with element 2 see Re Ellenborough Park especially with recreational type easements
        
        It cannot be too vague or too wide
        
        Cannot be precarious
        
        Cannot be so extensive so that it ousts the owner’s right from enjoyment or control of the land
        
        This last one is controversial where you have easements that give rights to parking and storage
        
        Ouster principle: See Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525 (Bryson J.) See appeal [2002] NSWCA 389 affirmed Bryson J at [40] and [61].