3015LAW Lecture Notes - Lecture 9: Estoppel, City Of Gold Coast, Specific Performance
1. EASEMENT
Easement
- Simplest definition:
o“An easement is a right to use a neighbour’s land without possessing it”
- Distinguished from lease and licence.
- Types of easement include (category is not closed):
o right of way.
o right of light (but not a right to a prospect/view eg windows - blocking light)
o right to air.
- Easement = planning tool
- planning issues privately
- exclusive possession not applicable
- Easement continues indefinitely whereas licence ends
Key elements
- There are four key characteristics of an easement at common law (Re Ellenborough
Park):
1. must be a dominant and a servient tenement.
2. easement must accommodate the dominant tenement.
3. dominant and servient tenements must be owned by different people.
4. the right must be capable of forming the subject matter of the grant.
Re Ellenborough Park
Land was subdivided into large park with lots around. Upkeep of land then lot owners had
full enjoyment of park through easement. Park was requisition by war office and paid to
developer. Surrounding lot owners had property interest and if they were entitled to money
from requisition. They did have interest (easement).
No issue for dominant and servient = servient was park area and dominant was the
surrounding tenants
Different owners
2 & 4 argued here.
2 = some of building lots didn’t not land directly on park area = still enjoyed park which
consistent with residiential property
4 = Certain enough
1) Must be dominant tenement and servient tenement
- The rule is firmly established at common law that there must be two tenements – a
dominant and a servient tenement.
- The need for a dominant tenement and servient tenement is reflected in the
registration of an easement under s 85A (LTA) (although note public utility exceptions: ss
81A, 89 LTA).
- Registration will record benefitted owner and burdened land owner
- Public utility provider = local state govt services despite dominant
2) Easement must accommodate the dominant tenement
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- The dominant tenement must benefit from the easement and the easement must be
reasonably necessary for the enjoyment of the dominant tenement Clos Farming Estates
v Easton
- There are a number of sub-elements for this requirement:
oThe dominant and servient tenements need not be contiguous. Conversely,
adjoining dominant tenements may not necessarily enjoy benefit of servient
tenement: Westfield Management v Perpetual Trustee
oJust because others may enjoy the benefit of the easement too is not fatal (Re
Ellenborough).
oThe fact that an alleged easement enhances the value of the dominant tenement
may be indicative of an easement, but not decisive (Re Ellenborough).
(reasonably necessary)
oAn easement may accommodate the subdivided parts of a dominant tenement
(Gallagher v Rainbow). Conversely, amalgamation of dominant tenement with
other land does not extend easement to all of the amalgamated land: Re
Eddowes
Westfield Management v Perpetual Trustee
easement allowing entry, perpetual serving, westfield gained owernship, could use access.
Determine terms strictly. To and from sky garden – narrow terms interpreted. Nature of
registered interests
Members of general public may not be part of the easement but still does not stop
easement – third parties still could be
Gallagher v Rainbow
four surrounding lots and there was private road to access main road. 25% each easement.2
of owners subdivided in to smaller lots – gallaghar said the smaller lots didn’t get to enjoy
easement. Presumption where subdivided dominant tenement then subdivided get access
to easement. But if there are any words that would be inconsistent to this then they don’t
get access.
Easement lot A and B in favour of dominant, amalgamated land = no, combining separate
lots can only be found by dominant tenemant
3) Dominant and servient tenement must be owned by different people
- At common law, a person cannot grant themselves an easement over their own land.
- It is possible for a person to grant an easement in favour of themselves under s 14(3)
PLA).
- good for developers so they can register all interests before selling
- And, under s 86 LTA, it is possible to register an easement even if the same person owns
the benefited land and the burdened land.
1) The easement must be capable of forming the subject matter of agent
- The right which the easement provides must be precisely defined, it must not be
inconsistent with ownership of the servient land and it must confer a benefit on the
dominant tenement (an overlap with the second element).
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- In determining whether this fourth element satisfied two useful tests:
o whether the rights purported to be given are expressed in terms that are too
wide and vague (Re Ellenborough; see also Riley v Penttila).
o whether such rights would amount to rights of joint occupation or would
substantially deprive the owner of the servient tenement of legal possession:
London & Blenheim Estates Ltd v Ladbroke Retail, Parks Ltd (cf Copeland v
Greenhalf & Weigall v Toman (consider proportionality, exclusivity,
practicalities).
- Need certainty of what is being granted – rights and obligation
NEED ALL FOUR CHARACTERISTICS FOR EASEMENT
London & Blenheim Estates Ltd v Ladbroke Retail
easement could be granted for parking vehicles on serviant tenant and satisfied the 4th.
Copeland v Greenhalf
parking of trucks as same, but 4th was not satisfied, interfered with rights of serviant
tenement
Weigall v Toman
factors, proportionality of interference, exclusivity of easement and practicality of the
easement
Creation of easements
- There are a number of ways in which easements may be created, including:
o express creation (grant or reservation);
o implied creation (grant or reservation);
o by long user/prescription;
o by promissory estoppel; and
o by application of s 180 PLA = supreme court
Creation by express grant
- Creation by express grant is the most important, in the sense that it is the usual way in
which easements are created.
- Formalities:
o writing: ss 10(1), 11 PLA.
o registration: ss 82(1), 83 LTA (takes effect as a legal interest under s 181 of the
LTA).
o lack of compliance – may be equitable easement so long as specific performance
available (or, in case of oral agreement, doctrine of part performance applies).
- Most important
- Owner serviant tenement enter agreement with dominant
- Sufficient acts of part performance = s 60 PLA part performance
Creation by express reservation
- Consider following circumstances:
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Document Summary
Simplest definition: an easement is a right to use a neighbour"s land without possessing it . Types of easement include (category is not closed): right of way, right of light (but not a right to a prospect/view eg windows - blocking light, right to air. Easement = planning tool planning issues privately exclusive possession not applicable. There are four key characteristics of an easement at common law (re ellenborough. Park): must be a dominant and a servient tenement, easement must accommodate the dominant tenement, dominant and servient tenements must be owned by different people. 4. the right must be capable of forming the subject matter of the grant. Land was subdivided into large park with lots around. Upkeep of land then lot owners had full enjoyment of park through easement. Park was requisition by war office and paid to developer. Surrounding lot owners had property interest and if they were entitled to money from requisition.
