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Covenants answer plans
Property Law (LAW 2112)
Monash University
Related Studylists
propert a law2112Preview text
Answer Plan CB 212 (For Adverse Possession Problem)
- Determine whether or not the claimant has been in occupation and control of land for requisite statutory period
- Determine whether or not the occupation and control of the claimant was single, exclusive , open , peaceably and without consent (factual occupation and control)
- Determine whether claimant intended to exercise such custody and control on his own behalf and for his own benefit to exclude the world at large (including owner) (intention to possess)
- Investigate the effect of an adverse possession defence against different title holders
- Investigate whether the period of adverse possession had been interrupted by:
- assertion of title by the owner
- acknowledgment by adverse possessor of superior title of owner
- abandonment of possession by adverse possessor
- Investigate whether the period of adverse possession had been extended by either disability or fraud
- Conclude whether the requirements for adverse possession have been met or not.
Exam Plan: DOCTRINE OF ESTATES:
(a) What type of estate or interest is it? o 1 Fee simple ; o 1 Life estate with future interest (remainder or reversion); or o 2. Lease with future interest (reversion) (b) Is the future interest a remainder or reversion? (c) Have the legal formalities for an estate or interest being complied with? (d) Is the estate/future interest vested in title and /or possession? Is vesting of title subject to a contingency? o Condition precedent o Condition subsequent o Determinable limitation Any remainder rules been infringed?
ANSWER PLAN: EASEMENTS
Determine whether the right in issue is an easement.
What is the nature of and scope the right? Consider the nature of the easement as an incorporeal interest in land conferring a specific right over the servient tenement rather than actual possession.
Does the easement comply with the four characteristics: a) Is the dominant and servient tenement owned and possessed by different
persons? b) Is there a dominant tenement and a servient tenement? Identify the different land interests c) Is the right capable of forming the subject matter of an easement? is it identifiable with clear boundaries so that the servient tenement holder is aware of what they can and cannot do on the encumbered land? d) Does the right accommodate the dominant tenement? Does it provide a clear benefit to the land rather than the personal interests of the owner?
Has the easement been expressly created and, if so, have the formality requirements been complied with? As the easement is an interest in land it must be established that it has been created validly at law or that it is enforceable in equity. To be validly created at law, it must comply with the requisite formality requirements (deed or registration). Where it is not expressly created or does not comply with these requirements it may be enforced by equity where the circumstances would make it unfair or unconscionable to deny the validity of the right.
Is the easement created by way of a grant or reservation? If the easement is conferred to a purchaser of the dominant tenement, granting them a right over land retained by the vendor, the easement will arise by way of a grant. If the easement is reserved by a vendor at the point of a sale, conferring a servient tenement upon the purchaser that is encumbered with a reserved easement, the easement will arise by way of a reservation.
If the easement has not been expressly created does it arise impliedly? Implied grants will arise on the grounds of: o necessity o continuous and apparent rights (Wheeldon v Burrows Principle); and o common intention. o Implied reservations will arise on the grounds of: o Necessity (the non-derogation principle)
Does the easement arise from continuous use (prescription)? Where a person has consistently used the right openly, without force or violence, and without permission for a period of 20 years the right may be enforceable under prescription. Common law requirements for prescription require a careful consideration of the facts because if it is shown that the right has arisen with the permission of the servient tenement holder it may amount to a mere licence.
What is the scope of the easement? How should the surrounding circumstances assist with its construction? If registered, does it gain the protection against the effects of indefeasibly?
with the benefited land.
Is there a building scheme allowing the modification of rules concerning an identifiable benefited land? Consider whether mutual and reciprocal obligations and benefits over different parcels of land exists in determining this question. If a building scheme exists, unity of ownership will not extinguish the covenant.
Has the covenant been extinguished or modified? Consider : agreement, unity of ownership, and legislative grounds – including obsolescence on the grounds of change in neighbourhood or where they impede the reasonable use of the burdened land and no enduring value etc.
Covenants answer plans
Course: Property Law (LAW 2112)
University: Monash University
