Westwood Conveyancing

What is an Easement and how are Easements extinguished or modified in Australia?

What is an Easement and how are Easements extinguished or modified in Australia?

What is an Easement? 

An easement is a right to use land for a particular purpose, granted by the land owner.

According to     an easement is a non-possessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B.

Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond.

An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.

The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts would enforce only four types of easement:

• Right-of-way (easements of way)
• Easements of support (pertaining to excavations)
• Easements of "light and air"
• Rights pertaining to artificial waterways

How are easements extinguished or modified in Australia?

There are a number of ways that an easement can be extinguished or modified, and can be done so by agreement, abandonment by a non-user, alterations made to the dominant tenement, unity of seisin and by statute.

By agreement

The dominant and servient owners can extinguish or modify an easement by agreement. However, at common law, any express release of an easement must be made by deed, and additionally, informal agreements releasing an easement are enforceable in equity if it is done in writing, or is supported by acts of part performance.

In certain jurisdictions, the Registrar may cancel notifications relating to the release, variation or modification of an easement. We can turn to s 90(1) of the Land Title Act 1994 (Qld) as our legislative example:

“90 Surrendering an easement

(1) A registered easement may be wholly or partly surrendered by registering an instrument of surrender of the easement.”

Alternatively in Western Australia and the Northern Territory, a court order must be obtained before any notification of the removal of an easement is noted in the Register – even in instances where the parties have agreed to the extinguishing of the easement.

We should add that in relation to extinguishing or altering an easement in Torrens legislation, will differ between the jurisdictions.

Abandonment by a non-user

Abandoning an easement by a non-user is reliant on the factual circumstances surrounding each case, with the question revolving around the intention of the dominant tenement. Therefore, if the owner of the dominant tenement clearly spells out that neither they, nor their successors in title will make use of the easement, then it may be considered as abandoned. However, inferring abandonment is usually not taken lightly, as was noted by Young CJ in Chiu v Healey [2003] NSWSC 857 at [36]:

“[I]t is clear that one can abandon an easement; see Grill v Hockey (1991) 5 BPR 11421, where M McLelland J held that under both the common law and the Conveyancing Act an abandonment occurs when the dominant owner has made it clear that neither he nor his successors in title will make any use of the easement though it is not to be lightly inferred. His Honour was following the decision of the English Court of Appeal in Williams v Usherwood (1983) 45 P & CR 235, 256, which quoted from a judgment of Buckley LJ in Gotobed v Pridmore noted in (1970) 115 SJ 78, what one must look for is evidence that there has been an implied (or lost modern deed of) release of the easement. Long non-user will be good evidence, but will not necessarily be sufficient to establish abandonment: Swan v Sinclair [1925] AC 227; Treweeke v 36 Wolseley Road Pty Ltd [1973] HCA 27; (1973) 128 CLR 274 and PSP 9968 v PSP 11173 [1979] 2 NSWLR 605.”

Although the exception to this rule is where a person acquires the rights by acquiescence.

Alterations to the dominant tenement

If the owner of the dominant tenement wishes to increase the burden on the servient tenement, the usual remedy may involve the seeking of an injunction, arguing that the actions of the owners of the dominant tenement, amount to a nuisance due to the use of the easement in such a manner.

Unity of seisin

Upon the acquiring of both the dominant and servient tenement by the same person in relation to a fee simple estate, may result in the extinguishing of the easement.

Statute

For the most part, the Supreme Court in all States has the power to modify, extinguish the easement either in whole or in part and restrictive covenants, provided certain requirements are satisfied.

If you require assistance or have any questions on the above then please phone our office.

Source  :  http://www.findlaw.com.au/articles/5197/how-are-easements-extinguished-or-modified-in-aust.aspx

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