Property Law 3

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LEGAL SUBSIDIARY INTERESTS LEGAL SUBSIDIARY INTERESTS Legal subsidiary interests consist of: Leases; Mortgages by charge; and Incorporeal hereditaments: Easements, Profits, Rentcharges. These may be granted in fee simple, for life, or for a term of years . S 28(1) LPA: Legal subsidiary rights (except short leases: s 30(2)) must be created by deed. Austerberry v Oldham Corp : Freehold covenants do not bind the subsequent owner of land. *Landowners conveyed to a company the necessary fee simple to make a road. *The company covenanted by deed of settlement to repair the road. *The council bought the road from the company, with notice of the covenant to repair. The law only recognises a limited range of property rights. The freehold covenant to repair was not a property right known to law it cannot run with the land it does not bind the council. Hill v Tupper : Landowners cannot create any property rights they wished by deed, even if they annex rights to land. *Canal owner leased out some land on the bank to P. *Canal owner contracted with P to allow P the exclusive right to let out boats from the leased premises (ie. a right annexed to land). *D, owner of an inn on the bank, allowed patrons to use boats for fishing and bathing. [P could sue the canal owner for breach of contract for not supplying the exclusive right promised.] [Canal owner can sue D for trespass on the canal.] The right of boating does not constitute a property right known to law: No exclusive possession of canal not lease of canal; No taking of things off canal not profit; Boating does not benefit the leased land; it's the other way around not easement. MORTGAGE BY CHARGE Garfinkel v Bentley : Mortgage is the offering of land as security for a loan . S 132 RPA: Every registered mortgage has effect as a security, and does not operate as a transfer of the charged land. Perry v Rolfe : For mortgages under the Torrens System: Mortgagor remains the legal owner of the land, subject to rights of the mortgagee. Mortgagee acquires a legal charge over the land, but does not own it. Remedies in event of default Ss 132-136 RP Act: After a period of default, a mortgagee may give notice; and if default is not rectified within the period specified in the notice, the mortgagee may exercise a power of sale . Ss 137-139 RP Act: [Governs mortgagee's right to possession ] Ss 140 RP Act: [Gives mortgagee a statutory power of foreclosure under which he may acquire the fee simple] RENTCHARGE Rentcharge is the securing of land against the periodic payment of money. National Executors of Tasmania v Edwards The payments must have the characteristics of rent : Periodic payments; Payments are not contingent ; and Amount payable can be calculated and made certain . Mere fluctuations in sums payable are not fatal. Rent may become payable at irregular intervals. Remedies for non-payment Rentchargee has the right to take possession of the land charged once the charge is at least 40 days in arrears. Restrictive covenants Restrictive covenants are promises not to do certain things with the land bought (if purchaser) or retained (if vendor in subdivision). Restrictive covenants, unlike easements: must be express ; and must be granted as part of a wider dealing . They are part of a property transfer & the conditions of sale. Burke v Yurilla SA : Restrictive covenants can be enforced by attaching them as conditions of registered rentcharges. PROFIT Profit is a right to take from land things naturally occurring there . It must be definitive & unambiguous. Mason v Clarke : Profits embrace the right of hunting , shooting and fishing on another's land. Permanent Trustee v Shand : A right to plant trees on land, work with them, and then harvest them, was not a profit. Ellison v Vukicevic : Profits can be created under the TS. Remedies for interference with the profit Abatement: Self-help subject to reasonable force; Nuisance: Injunction or damages; Trespass: Injunction or damages. EASEMENT An easement is the right of an owner of land which has the benefit of the right to use their neighbour's land in some way, or to restrict the neighbour's use of their land. Criteria of easement Riley v Penttila : 4 criteria of easements: 1) There must be a dominant tenement & a servient tenement. 2) The tenements must be owned or occupied by different persons; 3) The right must accommodate the dominant tenement; 4) The right must lie in grant. Copeland v Greenhalf : 5 th criterion: The right must not amount to substantial possession of the servient tenement.
LEGAL SUBSIDIARY INTERESTS 1) There must be a dominant tenement & a servient tenement Easements cannot exist in gross: The owner of a servient tenement must grant a right to a dominant tenement (not a person) need 2 lands. S 41a LP Act: Easements in gross are recognised in favour of the Crown or any public/local authority. 2) The tenements must be owned or occupied by different persons No one can acquire rights against himself tenements must be owned/occupied by different people. But a landlord may grant a tenant a right of way over adjoining land owned by the landlord. 3) The right must accommodate the dominant tenement The right granted must actually benefit the dominant tenement (ie. improve its access, useability and amenity). Hill v Tupper : A right of boating did not accommodate the land leased as a landing ground. An easement may benefit the dominant tenement in its improved state . Copeland v Greenhalf : A right to park vehicles awaiting repairs which benefits a business on the dominant tenement, rather than the dominant tenement itself, was an easement. People other than the dominant owner may also derive benefit from the right. Re Ellenborough Park : A right of way capable of benefiting any passer-by was a valid easement. The right cannot be created for the benefit of a person & simply annexed to their nearby land to make it look like an easement. Ackroyd v Smith : An easement cannot be granted for any purposes unconnected with land. The dominant tenement need not be contiguous to the servient tenement, but it must be sufficiently closeby to be benefited. Moody v Steggles : A right to hang a signboard on premises nearby was an easement. The right must be granted for the benefit of the dominant tenement . So: the right must be annexed to the dominant tenement ; or the right must be granted to the owner/occupier of the dominant tenement, whoever that may be from time to time; but must not be granted to a person personally. 4) The right must lie in grant The right granted must be well-defined, definitive & unambiguous . Rejected for being too wide or vague: Alleged easements of view, prospect, recreation, walking about, or undefined flow of air. Pwllbach Colliery v Woodman : A right to spread coal dust over an area was not well-defined. But Re Ellenborough Park : A right to generally enjoy a small park was definite enough. 5) The right must not amount to substantial possession of the servient tenement Copeland v Greenhalf : A right to leave vehicles repaired on half a laneway amounted to substantial occupation of the servient tenement not easement. But in principle, there is little reason why occupying a lot of the servient tenement without exclusive possession should prevent an easement. Positive v Negative easements Positive easements (where easement holder can do something on the neighbouring land): Right of way; Right to lay pipes or cables on adjoining land; Right to draw water; Right of drainage; Right to park vehicles; Right to hang signs; Right to use a shed; Right to invade land with noise, pollution noxious matters or surplus water; Right to enter for repair; Right to deposit stones. Negative easements (where the owner of the burdened land is restricted in the use of their land): Right of support against a neighbouring building; Right of light; Right to free flow of air down a defined passage; Right to windbreak; Right of fencing by servient owner (+ve obligation). Cth v Registrar of Titles (Vic) : The categories of easement are not closed. Austerberry v Oldham Corp : An easement cannot require the owner of the burdened land to do something positive. Remedies for interference with easement Abatement: Self-help subject to reasonable force. Trespass/Nuisance: Sue for damages or seek an injunction. Repair: Easement holder may repair any interference and send the bill to the servient tenement owner. Easements may be created by: Express grant (ie. by deed of conveyance); Implied reservation by: Absolute necessity (not mere inconvenience); Common intention of parties; Rule in Wheeldon v Burrows : If, at the time of sale , the vendor was using a continuous & apparent quasi- easement which was reasonably necessary for the enjoyment of the part sold , the easement passes with the sale. S 36 LPA: The statutory conveyance of all existing privileges with land; Aust Hi-Fi v Gehl : Since implied grants are not registered, they will be lost against a purchaser of the retained land from the original vendor unless caveated (which, under s 69(IV) RP Act, would protect the implied easement under a specific exception to indefeasibility). Prescription: Where a landowner enjoyed easement rights for 20 years , and the use was open and without force and without permission , the courts will imply the easement. S 22 LPA: Easements of light cannot be prescribed. Golding v Tanner : Under Torrens System, prescription is possible only where the same owner has been in possession of the servient land for 20 years.
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