11.1 Smith and Jones Before attempting this scenario you should read: . Wallace Weir and McCrimmon [10.390]; [15.20-15.110] . Re Ellenborough Park [1955] EWCA Civ 4 . Property Law Act 1974, section 11. · Land title Act 1994 (Qld) ss 82, 83, 181, 182, 184, 185 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. 1. Would the letter be enforceable against future purchasers of Smith's land? Why or why not? As the 'easement' is not registered under s 181, it is not legal or enforceable. In order for this to be enforceable against a future purchaser, it must be registered. Prima facie, there is nothing stopping this easement from being registered. 1. The instrument of easement must be registered to bind 3rd parties: ss 184 and 82(1) LTA. 2. Therefore, an equitable interest at best: s184 LTA a) If in writing but NOT registered, an equitable easement will be effective between the parties to the agreement - in personam rights rather than rights in rem (Walsh v Lonsdale). b) If NO WRITING, consider sufficient acts of part performance = oral or written easement enforceable by a decree of specific performance. 3. Equitable easement - liable to defeat by a subsequent servient land RP, even if they have notice: Stuy v BC Ronalds. 2. How should the arrangement between Smith and Jones be formalised?
There is nothing prohibiting this from being registered. However, it must be considered if there is anything preventing the interest from being registered. Despite the parties referring to the arrangement as an easement, it is not necessarily so. There are some criteria that need to be met in order for it to be an easement. There are some arrangements, such as a right of way that are considered easements. If this was the arrangement in question, registration would be possible. Here, there is a car park arrangement. The question of what constitutes a valid easement was set out in the English case of Re Ellenborough Park. (a) Dominant and servient tenement (b) Benefit dominant tenement (c) Different persons (d) Capable of forming subject matter of grant > will the court recognise this as an easement? Dominant (benefitted) tenement: Jones Servient (burdened) tenement: