Please enable JavaScript.
Coggle requires JavaScript to display documents.
Easement II - Coggle Diagram
Easement II
Priority b/ prior encumbrance and a subsequently created easement
when easement is second created interest
normal priority rules: whether X's interest proprietary --> not overreached --> first in time --> s 28, 20
creation of easement (A in favor of B) may trigger s 29
, depending on whether s 29 condition are met
1) easement must be
registrable disposition
--> must be express grant/reserved (LRA 2002 s 27(2)(d))
2) easement must have been
registered
3) easement must have been granted for
valuable consideration
if these condition met,
X's prior right will be postponed in priority
to easement
UNLESS right "protected (either in register or as overriding interest)
comes down to whether X in discoverable AO
creation of easement is not itself an overreaching conveyance
if there are trust, trustees A1+A2 create easement,
DOES NOT overreach a trust interest
creation of easement NOT overreaching conveyance
(
Baker v Craggs)
NO overreaching if easement is the second interest being created
Transmissibility of easement when either tenements changes hand
A holds registered freehold estate subject to X's easement, A--> B, whats the priority of X's prior easement vs. B's later interest?
whats priority of X's prior right and B's subsequently granted easement
Benefit
benefit of easement typically run w transfer of dominant estate
DT owned by A1 --> A2, easement --> A2
benefit travel w ownership of land
this is tru whether easement is equitable or legal
burden
owner of ST, B1, B1--> B2?
will easement burden B2?
A1 got easement over B1, B1--> B2, whether easement survives transfer
Stage 1
1) whether X (A1, person having easement) have pre-existing property right
if they have easement, answer = YES
2) has it been overreached by conveyance to B?
easement not the kind of right that can be overreached --> NO
3) Apply s 28 29 to establish whether priority is retained or not
apply s 28 --> A1 easement will bind, being first in time
whether disposition from B1-->B2 triggered s 29
IT WILL if disposition of registered estate, thats a registrable disposition, and for valuable consideration
if sale of freehold + B1 registered, S 29 triggered
whether A1's easement is protected or postponed
1)
will be protected if easement substantively registered
(if benefit/burden on register) --> easement protected
2) if not registered,
but burden noted on ST by notice
, will be enuf to protect against postponement
3) OVERRIDING interest
sched 3 para 3: legal easement in itself under certain circumstances can be overriding
5 more items...
Sched 3 para 2: interests of those in discoverable actual occupation
1 more item...
if not triggered s 28 applies and easement BINDs B2
Extinguishment of easements
methods by which easements are extinguished
1) possession and ownership of both ST and DT unites in single owner
if the two plots come into common ownership = no easement
easement can only exist on somebody else's land
2) release of easement by DT owner
can expressively give it up
3) abandonment of easement by DT owner
takes very strong facts to suggest this tho
difficult case concerning easement enjoyed a lease that is terminated
Wall v Collins
T has leasehold, enjoy benefit of easement
T acquires freehold of the plot theyre leasing, leasehold estate extinguished
orthodox: easement attach to estates, T's acquisition of freehold extinguish both leasehold and easement
unfair tho, its an upgrade but T lose easement
CA: T's easement attach to underlying
plot of land
, when l
easehold gone eaesment survive
unorthodox to say that easement attach to land rather than estates
WORK ENDS HERE