Easements Flashcards
Street v Fountaine
EASEMENTS
If the essential elements of an easement are not present then the arrangement will be a license rather than an easement.
The language used by the parties to describe the arrangement is significant in determining easement v license. Do not have to use term “easement”.
Intention to bind successors indicates intention to create an easement (absence is not detrimental), as licenses tend to be short term.
Absence of a time limit or right to revoke the arrangement not fatal.
Re Ellenborough
EASEMENTS
Set out essential characteristics of easements:
There must be dominant and servient land;
The right must accommodate/benefit the dominant land;
Dominant and servient owners must be different persons;
The right must be one that is capable of forming the subject matter of a grant.
Held that the ability to use park does accommodate the land and therefore was an easement because a garden undoubtedly enhances the use and enjoyment of the houses which it belongs to.
Olo
EASEMENTS
Starting presumption is that if the agreement can be an easement, the it will be one, unless there is something else that was intended.
Clos Farming
EASEMENTS
Involved a development whereby the individuals could buy discreet sections in a vineyard and build their house on it. Dominant tenants had a right to do almost anything on the land in order to harvest grapes.
Held not a valid easement because the rights were too extensive that it deprived the home owners of their enjoyment and this essentially had exclusive possession. Therefore, not a valid easement as the owners of the dominant land controlled the whole land and there was no use for the servient owner.
Held must not leave the servient owner without any reasonable use of their land.
Moncrieff v Jamieson
EASEMENTS
Moncrieff Principle = use v possession: This focuses on whether the servient owner lost possession of their tenement? It compares and distinguishes between possession and use - accepting that any easement will involve some loss. But for there to be complete loss of possession is a high threshold because can still build above / below, access to pipes, advertising, etc.
Schmuck v Coastal Preservation
2019, NZ SC
EASMENTS
Mr Schmuck owned boatyard business. The business spilled out beyond perimeters of its registered title onto a public reserve as some boats were too long to fit onto the property when pulled out of water to be washed/worked on. He had been granted easements under section of Reserves Act to spill over slightly onto reserve land.
Held not a valid easement because there was no time limit, the scope of activities were too wide, and ultimately undermined the ability of the council to exercise meaningful control over the reserve area = the rights conferred were to extensive and uncertain that they amount to joint occupation of the area of the reserve.
SC test used to determine whether an easement amounts to joint occupation was whether the proposed easement would leave the servient owner without reasonable use of the land = the pragmatic approach. But recognized that there is another approach as per Lord Scott in Moncrieff v Jaimeson that looks at whether the servient owner retains possession and control over the servient land. Gave no authority on which approach should be used.
Traditional Pragmatic Approach:
Look at entire land and access if servant still has reasonable use and enjoyment of land. if they don’t then cannot be easement.
Lord Scott Approach:
Look at the specific area the right is granted over and whether the owner still has control over it. if not then cannot be an easement.
Lord Scott recognises that all easements will involve some loss but that for their to be complete loss of possession is a high threshold because can still use above/below.
Which approach are NZ courts likely to take when accessing whether the easement amounts to joint occupation or substantially deprives owner?
I think it depends on the facts of the case.
If it is a very specific agreement that right is only for certain area then
Whereas, if it is fairly broad agreement and gives dominant servient a lot of discretion then pragmatic approach.
Ultimately think that the traditional approach should be preferred because Lord Scotts approach contradicts itself - if looking at the specific area right is granted to then shouldn’t be considering what can be done around it anyway. And it’s pretty far fetch to say something is not an easement because could utilise the sub-surface - just not that practical and would result in a lot of things that should be easements not being easements.
