Easements A right over the land of another person granted for a specific purpose Easements can be positive or negative Examples: Right of way (positive) Right to lay pipes, electricity cables etc. (positive) Right to not have light or air obstructed e.g. by construction on contiguous land (negative) >It is a proprietary interest, not personal, and will continue for the benefit of The land burdened by the easement (the servient tenement) remains in the successors in title to the land benefitted (the dominant tenants) ownership of the grantor of the easement subject to the rights of the grantee to exercise the rights granted by the easement. Re Ellenborough Park [1956] Ch 131 provided four essential characteristics: 1. There must be a dominant and servient tenement 2. An easement must accommodate the dominant tenement 3. The dominant and servient owners must be different persons 4. The easement must be capable of forming the subject matter of a grant 1. Must be sufficiently definite: Re Ellenborough Park 2. Must not amount to exclusive possession 1. Compare Copeland v Greenhalf [1952] Ch 488 and East Freemantle Shopping Centre West v Action Supermarkets [2008] WASCA 180 Wilson J in Weigall v Toman [2008] 1 Qd R 192 set out four factors: 1. proportionality; 2. extent of exclusivity; 3. prescription vs express grant; 4. practicalities See Clos Farming Estates Pty Ltd v Easton: total subordination of servient tenement A lease gives exclusive possession of the land to which it is subject and is an estate in the land An easement gives limited rights to utilise the land burdened for a stipulated purpose and/or a specific time e.g. a right to access property between certain hours in a specified manner e.g. with cars only (Weigall v Toman [2008] 1 Qd R 192 A profit a prendre confers a right to take something from another's land e.g. timber, soil. A Easements can be made by express grant A Note other methods of creation of very limited significance. See 15:120 - 15:210 Easement must be in writing and signed by grantor: s 11 PLA Easement can only be created by registration: s82(1)
Instrument of easement must state nature of easement, terms, and properties benefitted/burdened Rights and obligations of parties to easement set out in terms of easement The burden of the easement may include negative and positive obligations Burden, including the requirement to financially contribute to necessary works, binding on successors in title: Rufa Pty Ltd v Cross [1981] Qd R 365 Note: presumably restricted to covenants that 'touch and concern the land'. See also Gallagher v Rainbow (1994) 179 CLR 624 re rights of way Substantial interference with the enjoyment of a right granted in an easement is actionable: Petty v Parsons [1914] 2 Ch 653, 662. Injunction to prevent interference may be granted (see text 15:350). Dominant tenement holder must not treat easement as their own property. If they cause damage, it is actionable in nuisance: Hender v Gohl [1928] SASR 325. A 'right of way'