s6 Easement v Covenants

Question 1

what is an easement ?

Answer 1

an intangible interest in land that confers to a right that is enforceable over one piece of land for the benefit of another piece of land

Question 2

Elements of Easement?

Answer 2

1. there must be a dominant and servient tenant
2. the easement must accommodate the dominant tenant
3. dominant and servient tenement must not be owned by the same person
4. the easement right must be capable of being granted to the dominant tenant

Question 3

Types of Easement?

Answer 3

1. Express Easement

2. Implied Easement

Question 4

what is an Express Easement ?

Answer 4

when the servient tenant expressly give easement right to the dominant tenant through grant or deed.

Question 5

what is an Implied easement?

Answer 5

an implied easement is not given expressly, rather the right has been given through implying of common or statue law. Implied Easement may arise out of necessity or common intension.

Question 6

who has the right/ability to extinguish or modify an easement?

Answer 6

• parties may expressly alter or extinguish easement
• Supreme court has the ability to alter or extinguish an easement s73 Transfer of Land Act (vic)
• easement can also be extinguished if an intention to abandon the easement or upon changed circumstances

Question 7

what is covenant?

Answer 7

A covenant is a promise in deed, registered on title that imposes obligations on its owner in relation to the land.

eg; a party sells part of it’s land under the agreement that the new title holder does not build an apartment bigger than two level so it doesn’t block the view of his house.

Question 8

what is the difference between a covenant and an easement?

Answer 8

covenant is different to an easement as it is contractual, not proprietary

Question 9

what is the purpose of a covenant?

Answer 9

to impose positive obligations in restricting land use

Question 10

Who has the benefit of the covenant?

Answer 10

the benefit and burden of the covenant relates to land itself and not to the land owner.

Question 10

Who has the benefit of the covenant?

Answer 10

the benefit and burden of the covenant relates to land itself and not to the land owner.

Question 11

is a covenant enforceable on a third party?

Answer 11

yes, when an original party to the covenant sells their property the covenant will remain enforceable on the third party despite of not being privy - s56(1) PLA