#7192 - Covenants And Easements - Property and Equity 2

Clem Smith

Far-away Racing circuit

• The burden of restrictive covenants only run in equity against a subsequent holder with notice of it when the covenant is entered into for the benefit of some parcel of/interest in land [one cannot have an easement in gross]

• For Torrens land the burden of the covenant should be capable of being identified from the register (Bursill v Berger)

• Though distance is not determinative (Newton Abbot v Williamson & Tradgold – across the road; Baramon Sales v Goodman Fielder – 11km, evidenced showed that the land would be benefited if there was no flour mill on the servient tenement), land 35km away is not capable of being a dominant tenement

• This was intended to be a covenant in gross

Tulk v Moxhay is authority for the proposition that a restrictive covenant may run with the land in equity and be enforced against subsequent purchasers

Note – the restrictive covenant must ‘touch/concern’ the land of the covenantee (Marten v Flight Refuelling) – conducting specified business may (Newton Abbot v Williamson & Treadgold)

• Note TPA ss6 45 – transactions having the effect of substantially reducing competition are void

Public authorities can impose restrictions without benefited land (s88D/E – CA) – solves the problem in LCC v Allen

• A landlord’s reversion on a tenancy is sufficient interest in land – hence a landlord can restrain a sublessee from breaching a restrictive covenant on the original lease even though no other land he owns may benefit from the covenant

• Generally covenants must be negative in substance (positive = spend money, Haywood v Brunswick PBS) but statutory authorities under ss 88D can impose positive covenants (p91)

• Covenants must be intended to run with the land (successors, assigns etc. – this is the default position under s 70CA unless a contrary intention appears)

Re Martyn

Gotta be on the register

• IN order to notify a restrictive covenant – the land to be benefited by the covenant must be found in the register

• Even for a building scheme - the instrument has to contain the necessary information to enable someone searching the register to become aware of the restriction that is notified

A common scheme of development can be created through s 88B of the CA (p95)

Notable characteristics of RCs

• Must be negative in substance

• Must be intended to run with the land – but s 70A

• Remains an equitable interest – hence remedies are discretionary

• There must be a dominant and servient tenemnet

• It is not competent to create rights unconnected with the use/enjoyment of land and annex them so as to constitute property

• A covenant that stops one from hiring out pleasure boats is only between the grantor and grantee

• The reason is that the law “will not allow it” (it being new species of incorporeal hereditament

Lyria makes some interesting policy points regarding this case and easements in gross in general – don’t want land to be burdened up with all manner of covenants; it would reduce the free flow of money and purchasing of property.

1. Dominant and Servient Tenements

Gas & Fuel Corporation of VIC v Barba – extrinsic evidence admissible to

Cf Gapes v Fish – reservation of right of way, made no reference to a dominant tenement. Held – attempt to create easement in gross; conveyed a personal license

• Re Maiorana – Hope J expands the case; court can have regard to surrounding circs to identify the dominant tenement

**All these cases are overruled by s 88(1) of the CA – easement isn’t enforceable unless it clearly indicates:**

• The land to which the benefit of the easement is appurtenant

• The land to twitch is the subject of the burden of the easement

• The persons (if any) whose consent is required to lease it

• Papadopoulos v Goodwin – can look at the registered plan to determine the location of rights of way where the dominant/servient tenements are in different subdivisions

Easements in gross can only be created by prescribed authorities (s 88A CA) – but in NT anyone can

2. Accomodation

Easements need not be contiguous, just sufficiently close (e.g. a field Todrick v WN Omnibus) but some degree of propinquity is required.

SO long as the motives behind an easement are valid it is valid – even if the benefit obtained is remote (R v ROT; Ex p Waddington)

Gallagher v Rainbow – easement granted over ‘any part thereof’ of a private road sufficient to accommodate new lots created by subdivision

Blenheim Estates v Landbroke – agreement to grant easement if more land capable of benefiting not enforceable – easement requires the DT be identified before the grant.

3. Ownership by same person

S 88B(3)(c)(ii) CA – easements can be created even though burden and benefit accrues to the same owner (s 69 CA 0 Torrens)

S 46 RPA – person can create easement even though he owns both benefited and burdened if both land I Torrens

4. Subject matter of the grant

Riley v Penttila – joint recreation area available to lot holders sufficient to found an easement – authorities (Re Ellenborough) demonstrate it is necessary to have space in a house for a grarden/recreation etc.

Capeland v Greenhaf – right to store vehicles for as long as they like and as many as they like too wide and not defined to be an easement.

Tiler v Hawes (follows Clos) – easement creating a right of way with a consequence that the occupation for the servient owner is ‘sterile/nominal’ will not be upheld

Clos Farming Estate

‘epic viticulture arrangement’

Applies re Ellenborough

• In a commercial context the right to affix a signboard can establish such accommodation (Frater v Finlay)

• But the conduct of the trade has to be a necessary incident to the normal enjoyment of land – not an independent business exercise

  • Here it was just a mere matter of convenience and efficiency – there was no feature of the lot that made it the only place to carry out the works

  • There is not sufficient accommodation of the dominant tenement – nothing more than just mere convenience

• Given the rural nature of the land, the restriction breaches what is fundamental to easements in that it leaves very few rights by way of residue (it includes entering, planting, maintaining, harvesting etc. and to deduct costs form proceeds)

• The servient owner’s...