EASEMENTS EASEMENTS General A right over the land of another person granted for a specific purpose Creates an interest in land but is not an estate in land: · Must be created in writing - see PLA ss 10, 11, 59 · If unregistered, it is an equitable interest capable of supporting a caveat The person who gives the easement is the "grantor" (the servient tenant)and the person who benefits from it is the "grantee"(the dominant tenant) It is a proprietary interest, not personal, and will continue for the benefit of successors in title to the land benef i tted (the dominant tenants) The land burdened by the easement (the servient tenement) remains in the ownership of the grantor of the easement subject to the rights of the grantee to exercise the rights granted by the easement Easements can be positive and negative: · A positive easement gives the grantee a right to do something - eg to gain access through a right of way · A negative easement may give a right to some benef it without the neighbour obstructing it - eg light or air (a right not to have the neighbour a building constructed close to the boundary) Essential Characteristics There are 4 essential characteristics from Re Ellenborough Park. a) There must be a dominant and servient tenement A dominant area may be small and benef i ts thus may be limited R v Registrar of Titles; Ex parte Waddington There must be a benef it conferred on the dominant tenement's land, otherwise it is a mere licence Rangeley v Midland Railway Hanbury v Jenkins grantee right to cross grantor's land in order to exercise the right to f ish suf f i cient b) An easement must accommodate the dominant tenement - must be for the benefit of dominant tenement Riley v Penttila Clos Farming Estates (see below) This is subject to exception of easement "in gross" - ie not attached to or used with other land but only for "public utility providers" (drainage, gas or electricity providers, public right of way, infrastructure corridore) LTA ss 81A, 89 c) The dominant and servient owners must be dif f erent persons - subject to below Registration may still occur even if the lot benef i tted and burdened have same RO or the owner of the lot benef i tted holds an interest in the burdened lot Adam McRae LLB301 - Real Property Law
LTA s 86 If the same person becomes the RO of the lot benef i tted and the lot burdened, easement is extinguished only if the RO asks the registrar to extinguish the easement LTA s 87 d) The easement must be capable of forming the subject matter of a grant - eg light, air, drainage, noise, BUT NOT a view or right to protection by a neighbour from the effects of weather Must be suf f i ciently def i nite to be capable of (a) forming the subject matter of the