TUTORIAL: EASEMENTS Question 1 Smith is the registered owner of a vacant lot of land with an area of 1,000 square metres. Jones is the proprietor of contiguous land, upon which is constructed a dwelling house. Jones owns a fleet of delivery vehicles, which are part of a business that Jones operates out of his house. Jones' house covers almost the entire lot upon which it is built. Over the past 3 years, Smith has allowed Jones to park his vehicles on part of Smith's land each night and weekend. The vehicles when parked occupy about 200 square metres of Smith's property. The arrangement has been so far informal and is contained in a letter signed by both parties, which refers to this arrangement as 'an easement'. Jones discovers that Smith is thinking of selling his land and his worried about their arrangement. Answer the following questions. a) Would the letter be enforceable against future purchasers of Smith's land? Why or why not? b) How should the arrangement between Smith and Jones be formalised? c) Would your answer differ if the parked vehicles when occupied 800 square metres of Smith's property with the balance being inaccessible during that period because the entry and exit align with the side upon which the vehicles are parked? Question 2 Mary has been left an old Queenslander dwelling as part of the deceased estate of her grandmother Brenda. It is a very valuable property built in 1910 comprising 1200sq metres in an exclusive suburb on a title under the Land Title Act 1994 and has a value of approximately $3 million on current prices. Mary's title shows a registered easement of some 200 square metres as a burden in favour of the adjoining property situated behind Mary's property (the benefitted land) upon which is constructed a similar dwelling built about the same time. The easement registered in 1912 is for a right of way. Until 1980, it was used by Jason's predecessor and Jason from 1978, to give access to a garage on Jason's land. Jason is the fifth owner of the property since 1910 and purchased his property in 1978. Jason's property extends between two streets. By 1980, Jason had remodelled the frontage of his property (the opposite side to the easement) to provide a garage and access directly to the street which his dwelling fronts. However, this access is steep and unsuitable for anything more than a car. Since 1980, the easement has only been used for delivery trucks needing to unload articles being delivered to Jason (the owner of the benefitted land) and then only a few times at most since 1980. In 1983, a fire engine used it once to access a property next to Jason's property to extinguish a blaze at the rear of that dwelling. In 2011, Jason used it when the road passing
his frontage was flooded and impassable for 3 days. Since that time, Mary's grandmother had her front fence extended with gates installed. The gates