Cases - easements and covenants relating to land

Question 1

Street v Fountaine

Answer 1

Language used by parties is significant but not determinative.
- Can still be easement even if not called this
- Intention to bind successors indicates easement not license

Question 2

Re Ellenborough Park

Answer 2

For easement there must be:
- A dominant and servient tenement
- Right that confers benefit to dominant
- Owners must be different people
- Right must be capable for forming the subject matter of a grant

Question 3

Clos Farming Estates v Easton

Answer 3

Right must be capable for forming the subject matter of a grant? Means it cannot:
1. Be too vague or wide
2. Amount to joint occupation or substantially deprive 1 owner
3. Merely constitute right to recreation
4. Require servient owner to spend any money or do any act

In this case: Easements cannot amount to joint occupation

Question 4

Moncrieff v Jamieson

Answer 4

Facts:
- Right to park at end of driveway
Held:
- Question is whether the servient owner retains possession and, subject to reasonable exercise of the right (easement), control the servient land

Question 5

Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics pty Ltd

Answer 5

Facts:
- Car parking right where parking area covered more than half of servient tenement
Held:
- Must consider impact on servient owner
- Whilst possible for parking to take up this much room, unlikely in reality

Question 6

Ceda Drycleaners Ltd v Doonan

Answer 6

Whether a covenant actually does confer benefit is a question of fact

Question 7

Bezett v Aspen Grove Ltd

Answer 7

No covenant, the land purportedly benefitted by the covenant was, in reality, not

Question 8

Ouster princople test

Answer 8

London & Blenheim Estates v Larbroke Retail Parka
- Whether the grant would leave the servient without reasonable use of his land