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Easements Exam Template
Property Law (LAW 2112)
Monash University
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For [the plaintiff] to be successful, they will need to argue they have a proprietary interest over the land in the form of an easement / [the plaintiff] will argue he/she has an easement; An easement is a ‘right enjoyed by the owner of one piece of land, the dominant tenement (DT), the exercise of which interferes with the use and occupation of another piece of land, a servient tenement (ST) ; Specifically, [the plaintiff] will argue there is an easement of... [The defendant] will argue there is no easement, thereby allowing themselves to remove/restrict the use of the plaintiff
Is the grant capable of being characterised as an easement?
[The plaintiff] will apply the Ellenborough test to argue that it is an easement:
[The plaintiff’s] land is the DT and [the defendant’s] land is the ST
Even if the DT/ST is not adjacent, if it is still sufficiently close that it can be said it is appurtenant to the DT , the DT-ST relationship will be found ( Re Ellenborough ) o Cf. Riley – every property abutted directly on the ST.
The easement is for the benefit of the DT land as...
Makes the property a better and more convenient property. o Enhances enjoyment of the property, not [the plaintiff‟s] life in general...
The easement is not a personal right for [the plaintiff] ( Riley ) ; rather, it is...
For the use of a park – parks are common amenities associated with a house ( Re Ellenborough ); other activities, if recreational may not be; but o Seemingly recreational rights - ( such as hang-gliding ) can benefit the land if they complement the nature of the DT‟s property; that is, if the DT cannot use his property for the benefit, using the right on ST land may enrich the DT‟s land. If use can be done in vehicle or workplace - use must be connected to the land ( Re Ellenborough ); if use can be done elsewhere, it is not an easement. Short term parking – can be considered a valid easement, but needs to remain at a property
The DT and ST are owned by different people ( Re Ellenborough ).
A [easement eg. right of way] is capable of forming the subject matter of a grant.
It is not too vague, like a right to wander or right to a view ( Re Ellenborough ). It is not too broad, and the use is not too frequent, to amount to co-occupation; co-occupation is found if the DT can dictate how the ST land can be used ( Copeland; Ellenborough ). It is not recreational; needs to improve or benefit the land (Copeland; Re Ellenborough ). Right to read a newspaper – may not be recreational; depends on quality of newspaper!
The right may/may not constitute an easement. But assuming the characteristics are satisfied, it must be considered whether this easement was validly created –
Was the easement validly created?
Right of Way
[The plaintiff] will argue that the path‟s wear indicates a „continuous and apparent‟ easement. But [the defendant] may point out that the track did not exist the time the easement was allegedly granted. It is unclear whether [the defendant] used to use a quasi-easement to check the pipes, facilitating a „continuous and apparent‟ easement, but this seems unlikely if [the defendant] always lived on [the ST].
Prescription
This turns on the DT using the land „as of right‟ for a period of 20 years. [The plaintiff] shows his use was - o Without force ( nec clam )... o Without permission ( nec vi ) o Without secrecy ( nec precario ) The requirement finds itself in the opportunity of the land owner to observe the use ( Sunshine v Wulff ). If [the defendant] is unable to observe, [the plaintiff] may be exercising his right in secrecy. However, it is probable personal peculiarities will be ignored; [the defendant] had reasonable opportunity to observe use, and without secrecy is not an issue. But deliberately exploiting the ST owner‟s peculiarity to get away with use does not indicate „ nec clam ‟ ( Sunshine v Wulff ) o With [the defendant‟s] acquiescence - This is sufficed where [the defendant] notices [the plaintiff‟s] use, but never objects to because they are not bothered by it. This shows actual/constructive knowledge, and a lack of protest. Acquiescence is sufficed. Open acts suffice for acquiescence when the ST owner could reasonably be aware, but is not due to subjective lack of curiosity or awareness.
Implied Grant
On the grounds of Necessity
Alternatively, B could argue it was an implied grant in an easement of necessity:
This depends on how severe the flooding was. The Court was unwilling to recognise an implied reservation on the grounds of necessity in Sydney Printing , but this was because the DT owner created his own difficult situation.
Implied Reservation
On the grounds of Necessity
The Courts have been loath to grant implied reservations. Nevertheless, [the plaintiff] may argue this easement is necessary for the enjoyment of his land. o Necessity imports „essential‟ ( North Sydney ). Not essential if use of his property would not be significantly burdened [the easement]
[The plaintiff] will argue he has gained adverse possession (AP) over the [land] ( Perry ).
Adverse possession occurs when the documentary title holder is dispossessed or discontinues use and possession of their land, and that land is intentionally possessed and used by another for 15 years to the exclusion of all others
As [the plaintiff] is in possession, he/she is presumed to have the best right, even if it is wrongful ( Perry, Mabo ). However, as [the defendant] is a remainderman (has a future interest in Ferngully, left in [the first defendant‟s] will, this means he/she has either 15 years from when [the plaintiff] first assumed possession, or 6 years from her interest vests in possession, which is longer to make a claim ( LAA, s. 10(2) ). Under s. 8, LAA if [the plaintiff] makes out AP, [the defendant] will be statute barred from evicting [the plaintiff] after 15 years of possession. If the plaintiff acknowledges the defendant‟s ownership, this defeats an AP claim but only if the acknowledgment was in writing signed by the adverse possessor ; otherwise, it is ineffective ( LAA, s. 25 (1))
When did time start running?
[The plaintiff] will contend that time started running in [...] when [the defendant...]. This was indicative of discontinued use ( LAA, s. 9(1) ). Thus, AP started running in [...] when [the plaintiff...], as this was inconsistent with the rights of the owner ( LAA, s. 14 (1)). Therefore, [the plaintiff] may argue [the defendant‟s] title was extinguished in [...] ( LAA, s. 18 ), making [the plaintiff‟s] title good against the whole world ( LAA, s. 8 ). By permission – o Given the short duration of permission, together with the fact that if [the plaintiff] returned he/she would not be a trespasser, this seems to indicate [the plaintiff] did not part with exclusive possession of the land, and was simply awarding [the defendant] a license to stay on the land. o However, an extended stay or future stays beyond the expiry of that license will demonstrate occupation, and thus a tenancy at will. In this instance, he limitation period of AP will commence one year after tenancy has started ( LAA, s. 13(1) ); that is, [...]. Successive Owners – o So long as the [...] successive ownerships can be aggregated, it does not matter that there were multiple possessors ( Mulcahy ). o EG: In fact, this doesn‟t matter at all here, since the entire 15 years happened while [the plaintiff] alone was in possession and before [the defendant] purchased/acquired the land and took possession.
But was [the plaintiff] actually ‘in possession’ for the purposes of AP?
[The plaintiff] will argue their possession is adverse because they have demonstrated -
Factual possession, as their use was –
Open, as evidenced by the fact that [the defendant] became cognisant of his/her use and did nothing about it; o Hiding away possession may be in secret, but this must be read in light of the character of the land ( eg. if the parcel constitutes a forest, a caravan may not be open if it is kept in the forest, but a reasonable owner of forested land careful of their interests would have discovered a caravan if they had only looked ). Without force; Without the consent of [the defendant]. o While [the defendant] did not demonstrate any attempt to remove [the plaintiff] and nullify their use of the land, he did not validly consent to it either ( Mulcahy , Bowen J). In addition, [the plaintiff] will argue that – o Their fencing of the area is a good indicator of possession ( Buckinghamshire; Abbatangelo ). o Keeping animals and cattle on the land is a good indicator of possession (analogise with Pye re the cattle; other animals, such as horses, goats, cows and playing children in the land in Abbatangelo to argue that they obtained possession of [the land]). o By planting, they were treating the land as an owner might, good evidence of possession ( JA Pye, Buckinghamshire v Moran ). However, [the defendant] may contend that [the plaintiff] did not demonstrate factual possession by – o Failing to fence the land ( Buckinghamshire ). However, where the area is extremely large and wild, the plaintiff cannot reasonably be expected to fence the entire area; as long as they used and possessed the land in such a way consistent with the nature of the property, factual possession will be made out.
Other notes
Possessing a small part of the land does not entitle the plaintiff to claim the entire parcel; the plaintiff not meant to be entitled to 99% of the land when they have only possessed 1%. o But where the land comprises a large area, acts of possession performed on one part may provide evidence of possession of the whole. Rural setting – o Fencing off or locking a gate demonstrates factual possession, as it sends the message that the plaintiff is occupying the land to the exclusion of all others ( Abbatangelo ). Paying rates – o Does not demonstrate possession alone; something more is needed. Inviting others on to the land before AP is established – o Equivocal, as it says nothing beyond an immediate right to do so under a license (if there is a license).
An intention to possess can be inferred from the nature and degree of [the plaintiff’s] physical possession. [The plaintiff] demonstrated their intention to by possess by -
Placing a caravan on the plot; [If the plot is forested or wild land], studying the plant species on the land for the benefit of the plant species ( JA Pye; Moran ).
Notice
[The defendant] may claim [the plaintiff‟s] notice is ineffective, as it amounts to a mere formal entry ( LAA s. 16 ). However, if there is no completed period of AP, [the plaintiff] wins simply as the registered owner.
CONCLUSION:
General - [The defendant] could raise the argument of the Victorian Charter, asserting that AP is a contravention of his human rights. However, the European Court of Human Rights found otherwise in Pye , so it seems unlikely that the Victorian Court would do much to help.
Successive - As such, if [the second possessor] can count her years of possession, together with the [first possessor‟s] years, and these accrue to 15 years, AP is likely to be found, and [the plaintiff] will have indefeasible title to the land ( TLA, s. 42(2)(b) ). But if [first possessor] abandoned the land in [...], 15 years will not have accrued and [second possessor] will have no claim.
15 years v 6 years (freehold interests) – [the defendant] had a vested interest from [...] This means she would have 6 years to bring a claim under s. LAA, s10(2) which means [the defendant] would have to have brought a claim by [...]. However, as it is now [...], she would be barred if AP is made out. But if [first possessor] abandoned the land in [...], 15 years will not have accrued and [the defendant] can bring a claim.
UNLAWFUL POSSESSION
EG(1):
[The defendant‟s] use of 4cm of the land arguably amounts to unlawful possession. An injunction is unlikely to be awarded however, pursuant to the test in Jaggard v Sawyer : o The damage to [the plaintiff] is small; o The damage to [the plaintiff] is capable of being estimated and compensated in money; o The award of damages is not so oppressive to [the defendant] so as to deprive him of 4cm of farmland ( Break Fast ).
Therefore, at most, [the defendant] could apply for damages in moving the shed, up to the amount of the cost of removal, depending on the success of his argument.
Easements Exam Template
Course: Property Law (LAW 2112)
University: Monash University
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