Easements and covenants

what is an easement cf covenant

Easement: ‘right of way’ - a positive right to do something on someone else’s land. 

Covenants: Promises about activity on one’s own land - can be restrictive preventing them from action or positive making them act.

Emmonds Developments v RFD Investments - legal and equitable

Legal easement = registered OR an equitable easement meeting s 24 PLA (or part performance per s 26)

• Can protect an equitable easement by caveating

• All easements burden a piece of land.

Categories of easements in NZ: 

• Appurtenant

  • Benefit a piece of land - the easement attaches to your land - if the land is sold the easement interest would go with it (take subject to the easement)

• Easement in gross; 

  • Benefits a particular person or body corporate rather than land - can sell it/change benefits. 

Requirements for an easement (4) - then Clos Farming ideas

1. Subjectively intended that the agreement is an easement (or operates like an easement) [olo Ltd v KA no 3]

2. 
   

   Re Ellenborough Park There must be a dominant tenement and a servient tenement (Appurtenant easements) Does not apply to easements in gross (permitted under s 291 of PLA) Will run with burdened land if registered An easement must accommodate (be of practical benefit or use to) the dominant tenement in NZ only true is benefited land is appurtenant to the burdened land A right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant (MOST IMPORTANT PART) If C is satisfied can ask if: Clos Farming Estate v Easton;  The right must be defined in sufficiently clear terms  cannot be too wide or vague in character  Whether such rights would amount to joint occupation or would substantially deprive the park owners of proprietorship or legal possession ( Ouster principle)  The rights should not impose upon the servient owner the obligation to expend money or do something beyond merely passivity - do they constitute mere rights of recreation, possessing no quality of utility or benefit

Joint occupation

- Easement cannot be such that occupation is shared (easement = right to do something on land occupied by someone else)

Ouster principle

 Is it joint occupation or a substantial deprivation of the owners proprietorship or legal possession?

Would such rights amount to joint occupation or substantially deprive the owners of proprietorship or legal possession? An Easement must not: Amount to rights of joint occupation or substantially deprive the owners of proprietorship or possession (Clos Farming) Give exclusive and unrestricted use (Reilly v Booth) Leave the servient owner without any reasonable use of his land (London & Blenheim Estates)

2 differing approaches - pragmatic vs alternative

1. The pragmatic approach (Clos Farming)

• Does the servient owner still have reasonable use of the land? (Batchelor v Marlow)

• Consider the land as a whole and whether the land owner still has some reasonable use of it 

  • i.e. Rights must be proportionate to the use of the burdened land 

• An easement is invalid if it is so extensive as to:

  • Exclude the servient owner from the use of a defined area - test of use and proportionality (The Owners of East Fremantle Shopping Centre v Action Supermarkets): 

• Cannot give commercial agreements property rights with perpetual effect

2. The Lord Scott alternative approach (Moncrief v Jamieson) 

• Does the right granted deprive the servient owner of possession and control of the servient  land, subject to the reasonable exercise of the right in question?

• Where the servient landowner retains possession and control (subject to reasonable exercise of the right in question) then the easement doesn’t exclude the servient landowner.

• Consider the land upon which the easement operates over, rather than the land as a whole. 

If commercial parties want to create an easement they should be allowed to do so - They know their own interest best

- dislikes the pragmatic test of proportionality as it could lead to games being played (e.g. subdividing until it hits the level).

Can always buy back the easement. Therefore, market forces can sort it out. 

what way is the law going for the ouster principle?

What way is the law going in NZ? Opua Coastal Preservation Incorporated v Far North District Council:  DC: Suggests the test is whether the owner retains possession and is subject to reasonable exercise of the right in question and control of the land.  CoA - this answers the question of whether the burdened land owner was left with reasonable use SC: disagreed with CA - all are now easements – considered whether it deprived the public and D council of reasonable use of the reserve (servient tenement) and whether the DC is deprived of possession or control of the easement area- but basically said we don’t need to resolve the issue. - suggests conflation without reconciliation

covenants

inverse of an easement-  promise by landowner to not do something on their land

• Tulk v Moxhay - established that the burden of a covenant would run with the burdened land forever

• 2 restrictions; 

  • The covenant had to be taken for the benefit of a particular piece of land and there did have to be a benefit. (Necessary to have both a benefited and burdened land]

  • In order to be valid the covenant had to be what is called negative or restrictive

• In NZ; 

  • A covenant doesn’t get ‘registered’ on the title - they are notified on the title - binding to successors in title but don’t get all the benefits of registration. 

  • NZ also allows for positive covenants to burden land and covenants in gross too. 

Olo Ltd v KA no 3 Trustee Ltd

Facts: Argument about 2 pieces of neighboring land - agreement to sell from no 4. Terms: Vehicle access over the adjoining land to the property for 3 day period sometime w/in the month following settlement to allow the purchaser to move furniture into the property; and  Vendor grants people visiting the purchaser (invitees, agents, contractors) access from the road through the vendor's neighboring property which is adjacent to the land in this agreement for a period not exceeding 6 months. Access via road to this property will be available from the date of confirmation of this agreement and must be completed w/in 36 months from settlement date. NO access on weekends, public holidays or b/t 24th dec - 3rd jan. It is acknowledged by the parties that the access is required to assist the purchaser in the removal of the existing dwelling from the property and the building of a replacement dwelling.  The vendor warrants and undertakes to take all steps necessary to ensure that the purchaser will continue to receive the benefit of this agreement from any subsequent registered proprietor. KA extended this for an extra 2 years - Olo LTD caveated to protect their easement interest given by the document. Land was actually owned by KA no 3 (sister company of 4). No 3 argued it was a license not easement (not property right = no caveat)

ISSUES: Did the access rights granted by the ASAP possess the essential characteristics of an easement; and Did the parties intend to create an easement

proposition that there is a rebuttable presumption that, if the agreement can be an easement, then it will be one, unless there is evidence something else was intended. So it was an easement

Clos Farming Estate v Easton

Facts: Ambitious development of vineyard Winery to go in the middle of development and subdivide land around - on each subdivided section purchasers could build a house. Idea was buy section and have the benefit of someone else working the land The idea was to use easements on these things. Wanted to create a winery and subdivide the surrounding land Land being run as one single vineyard Use of easements for the winery to run the servient land Extreme subdivision on a vineyard to the extent that the proprietors could do nothing on the land except ‘pay the rates and bills’ Issue: Was it a valid easement?

Courts say this would not be an easement (its too big of an area) Ouster Principle: An Easement -  [must not] amount to rights of joint occupation or substantially deprive the owners of proprietorship or possession (Clos Farming, from Ellenborough Park)

Owners of East Fremantle - pragmatic approach to ouster

Granted a car parking easement   Issue: Was it an easement?

An easement is invalid if it excludes the servient owner from the use of the defined area.

Batchelor v Marlow - pragmatic ouster principle

6 cars that were able to be parked 9.5 hours a day on business days. Could not park there on sunday.  Mathematically the servient owner had more hours available Issue: Were the rights granted too extensive to be an easement?

Test is one of proportionality and reasonable use of the servient tenement. Cannot be too occupied like. Landowners must still have reasonable use of the land.  Consider the purpose of the use of the land and whether it can be used reasonably by the owner. Held; NOT an easement -  land owner had been ousted (too big to be an easement)

Moncreiff v Jamieson - alternative approach

Parked two cars on driveway at the top of a cliff, where the property sat below Had initially been granted access through the driveway. Issue: Did the agreement constitute an easement?

Lord Scott The question is one of possession and subject to the reasonable exercise of the right in question. Must ascertain whether the owner retains control of the land rather than reasonable use It is the land over which the easement is enjoyed and not the totality of the servient tenement which must be considered. Proportionality is arbitrary.

Towers v Stolyar (Aus) reconcilliation?

Agreement allowed the dominant owners to park vehicles in a single garage and the area in front of the garage on the servient tenement. Issue: Could it be a valid easement?

Used both reasonable use and control tests. (Jea Holdings) If the servient owner is not excluded from the subsurface, and the right to build under, on or above the surface then it can be an easement.

Opua Coastal Preservation Inc v Far North District Council

(NZ SC) - where is nz law now going with the ouster principle

Mr S operated a small business on the shores of Opua bay Owned the business for a long time, which had split onto council reserve Council had granted him to use the land (looked like an easement) Coastal preservation were questioning the lawfulness of the decision Issue: Was it an easement?

Considers both whether it deprives the owners of reasonable use and whether it deprives the owners of possession or control over the easement area Both SC and CoA have sympathy for Lord Scott’s approach Uncertain as to what approach NZ courts will take. Pragmatic; or Alternative No mention of whether you focus on the easement area or the whole of the land