LLB220 Lecture Notes - Lecture 11: Upper And Lower Egypt, Nsw Law Reports, State Transit Authority
Week 11 – Easements and Profits à Prendre
• Easements and profit à prendre are sets of limited rights that non-occupiers of land
hold over land occupied by someone else
• Subsidiary interests that burden the full use of land by an owner
Easements
General
• Interests in land less than full ownership
• Proprietary rights
• Histoiall ko as iopoeal heeditaets
- Incorporeal because they confer rights over the land rather than rights to the
physical land itself
- Heritable as they are forms of real property
• Can be transferred
• Halsus Las of Eglad:
- A ight aeed to lad to utilise othe lad of diffeet oeship i a
particular manner (not involving the taking of any part of the natural produce of
the land or any part of its soil) or to prevent the owner of the other land from
utilising his land i a patiula ae
• Early English law distinguished between:
- Corporeal hereditaments – tangible interests, i.e. ownership of land
- Incorporeal hereditaments – intangible interests that relate to land
• Can be created by:
- Express reservation
- Approved plan of subdivision under s 88B CA
- Implied grant or reservation
- Acquisition by long user or prescription
- Granted by the Supreme Court under s 88K CA
- Granted by the Land and Environment Court under s 40 Land and Environment
Court Act 1979 (NSW)
Easements: Terminology
• The land that has the benefit of the easement is called the dominant tenement.
• The land that is burdened by the easement is called the servient land.
• The designation of land as dominant or servient is only in relation to that particular
easement. If there is more than one easement (or other similar interest), which land
is dominant and which is servient may switch.
• Easeets ae a eaple of Iopoeal heeditaets – intangible rights to land
• Corporeal hereditaments are physical/tangible rights to land, essentially the land
itself
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Examples of Easements
• Positive = allows the grantee to make positive use of the land burdened by the
easement. Examples:
- A right of way across the land of a neighbour
- The right to discharge water from a drain onto land
- The right to place a sign on land
- Right to enjoy a recreation area
- The right to use the toilet or cattle yards on other premises
• Negative = limits what the owner of the servient tenement might otherwise lawfully
do on his/her land (usually have no right of entry)
- A right to receive light to a window
- A right to the flow of air through a vent
Prohibit servient from constructing a building above a certain height
- A right to receive water through pipes
Prohibit owner from removing or blocking pipe
- A right to support for a building
Prohibit owner from removing soil or structure from their land
Easements Distinguished from Other Types of Rights
Natural Rights
• An easement must be created, it cannot exist automatically
• Natural rights are inherent features of ownership, protected by law of torts, found in
relation to rights to use, enjoy, exclude and alienate
• Per common law, the natural rights were a part of land ownership, did not need to
be expressly created
• Natural rights:
- Support → right of a land owner to prevent the removal of soil to support their
own land (s 177 CA)
- The flow of water in a definite channel
• S 177 CA allows for the creation of an easement for the removal of support by the
dominant tenement to remove support their land provides to the servient tenement
that would otherwise be a breach of the duty of care imposed by s 177
Public Rights
• Easements are distinct from rights of public access – they are property rights that
belong to the owners of a particular block of land
• Public rights exist in gross
Licenses
• Easements are distinct from personal rights, because they bind the land, not just the
parties
• A right to cross land created between two persons, but not binding subsequent
owners, is a licence
• An easement is not a right to exclusive possession
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Substantive Requirements for the Creation of an Easement
Four substantive requirements (Re Ellenborough Park):
1. There must be a dominant and servient tenement
2. The easement must accommodate the dominant land
3. The dominant and servient tenements must not be held and occupied by the same
person
4. The right created must be capable of forming the subject matter of a grant
Established in Re Ellenborough Park [1956] Ch 131:
• 7.5-acre park – in 1855, parts of the park sold for housing. Remaining parkland kept
as an ornamental garden
• Deeds gave purchasers of the houses the right to use the remaining parkland. Not
all houses directly adjoined the park
• Parkland was used during WWII, compensation payable. Some $$ owed to
homeowners if there was a valid proprietary easement re use of park. If not, entire
amount payable to landowners
Substantive Requirements: There Must be a Dominant and a Servient Tenement
• Easement must operate for the advantage of one property to the disadvantage of
another
• Advantaged property → dominant tenement
• Disadvantaged property → servient tenement
• Not possible to have an easement that benefits a person, without also benefiting
land → the easement must be annexed to the land
- Appurtenant to the dominant tenement
• A easeet i goss a e created in favour of the crown or public/local
authority, by legislation or where the easement is for supply of a utility service to the
public or the supply of rail infrastructure facilities
- Does not require a dominant tenement: Conveyancing Act s. 88A
- I.e. for public access under s. 56(2) of the Crown Lands Act 1989
• The grant to a right of an individual not possessed of a dominant tenement will give
rise to personal rights in the nature of a contractual licence only → not enforceable
against third parties
• The dominant tenement is usually land
- BUT may be another incorporeal hereditament, e.g. another easement or a profit
• An easement can be created over leasehold land, but will exist only as long as the
lease does
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find more resources at oneclass.com
