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
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
No one can acquire rights against himself
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
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
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
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
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
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
the right must be annexed to the dominant tenement
the right must be granted to the owner/occupier
dominant tenement, whoever that may be
from time to
be granted to a person personally.
4) The right must lie in grant
The right granted must be well-defined,
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.
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
Copeland v Greenhalf
: A right to leave vehicles repaired on
half a laneway
amounted to substantial occupation of the
But in principle, there is little reason why occupying a lot of
the servient tenement
without exclusive possession
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
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:
(ie. by deed of conveyance);
Implied reservation by:
(not mere inconvenience);
Wheeldon v Burrows
: If, at the time of sale
vendor was using a continuous & apparent quasi-
which was reasonably necessary for the
enjoyment of the part sold
, the easement passes with the
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
, 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