LM 204 EASEMENTS by forsythe


									                           LM 204 EASEMENTS
The textbook : (MacKenzie and Phillips) covers this topic quite well. The case
law is relevant, but ignore references to English statutes.

As we have seen, the owner of a freehold or leasehold estate has the right to
exclusive possession of the land. However, this right is subject to a number of
restrictions, such as planning laws, prescriptive title etc.

A landowner may also wish to give away or share some of the rights that go
with owning freehold land, other than the right of possession of the land. The
persons to whom these rights may be given will usually be adjoining or nearby
landowners. For example,

   -   a landowner may wish to grant a right of way over his or her land to a
       neighbour so that the neighbour may have better access to a road.

   -   A landowner may allow a neighbour to dig a permanent drain across his
       or her land to assist the neighbour to drain his or her land.

   -   Landowners often allow neighbours to run water pipes or electric power
       lines under on or over their land.

These arrangements may he formalised in three ways:

       (a) by contract, which creates only personal rights between landowner
       and the neighbour; (does not create an immediate interest in land)

       (b) by licence, which may be revoked at any time by the landowner,
       (does not create an immediate interest in land)

       (c) by easement, which creates a right over the owner's land which
       becomes attached to and runs with the neighbour's land - can create
       and interest in land.

If these arrangements are not formalised, they may mature into easements by
prescription (long user) over a lengthy period of time. (see later).


An easement may be described as a right attached to land which allows the
land owner to use other land owned by someone else in a particular way. An
easement does NOT involve the taking of any part of the natural produce of
that land or any part of its soil. Nor does an easement prevent the owner of the
other land from using their own land in a particular way.

This general description shows that there two kinds of easements, positive
easements which are the normal sort, and negative easements which are
much less common.


Positive easements give the owner of the land to which the easement is
attached the right to do something on or to the other land the subject of the
Positive easements include:

   -   Rights of way,

   -   Right to place over neighbouring land clothes on lines,

   -   Right to move a timber traveller through and over neighbouring land,

   -   Right to deposit on a neighbour's land, refuse or trade goods

   -   Right to nail fruit trees on a neighbour's wall,

   -   Right to use a fascia on a neighbour's house,

   -   Right to fix a signboard on a neighbour's house,

   -   Right to use a lavatory,

   -   Right to landing nets on another's land,

   -   All necessary rights enable the grantee to obtain WATER from the land
       of the grantor;

   -   Right to place stones on the foreshore for the protection of the adjoining

   -   Right to go on a neighbour's land and draw water from a spring there, or
       from a pump,

   -   Right to discharge rainwater by a spout or projecting caves,

   -   Right to send water across a neighbour's land by an artificial

   -   Right to construct and maintain a ventilation duct.


Negative easements give the owner of the land to which the easement is
attached the right to stop the owner of the land the subject of the easement
from doing something on that land. For example to stop that person from doing
anything which would interfere with the right held by the owner of the land to
which the easement is attached. Negative easements could be:

   -   Right to receive light for a building,

   -   Right to receive air by a defined channel,

   -   Right to the support of buildings from land or from buildings,

   -   Right to receive a flow of water in an artificial stream.


Natural rights

Easements are to be distinguished from natural rights and profits a prendre,
(called hereafter “profits”). Natural rights are rights which arise automatically
out of ownership of an estate in land. They are protected by the law of torts. For
example, a landowner is entitled to have his/her land in its natural state,
supported by adjacent land. This is a common natural right, but does not apply
to buildings. A landowner is not entitled to have buildings on his/her land
supported by adjacent land. However, an easement may create such a right.

Other natural rights include

   -   the right to exclude others from land, (by the tort of trespass) and
   -   to use the land as the owner pleases (subject to planning laws or the tort
       of nuisance).

There is no natural right to light. That right may he acquired as an easement.

Profits a prendre

Profits a prendre (French for "profits to take") involve taking some of the
substance of the land, while easements do not involve substance - such as the
right to park a car, to pass over someone’s land.

Examples are

   -   the right to dig gravel, or
   -   to take stones or fish or game from another person’s land.


There are four characteristics which are essential to an easement

       (a) There must be a dominant and a servient tenement,

       (b) The easement must accommodate the dominant tenement,

       (c) The dominant and servient owners must be different persons,

       (d) A right over land cannot amount to an easement unless it is capable
       of forming the subject-matter of a grant.

These characteristics overlap to some degree but are considered separately.


Easements are different from licences or ordinary contracts in that the
easement agreement creates an interest in land which runs with the two pieces
of land long after those who entered into the easement agreement have ceased
to own the land. The land benefited by the easement is called the “dominant
tenement". The land the subject of the easement is called the “servient

The following illustration shows this:


Notes on the diagram

       1. The land A, and E are dominant tenements only of the right of way
       over the land B and C.

       2. The land B is both a dominant tenement and a servient tenement. It is
       a servient tenement of the right of way in relation to A,C,and E. However
       it is a dominant tenement in relation to the right of way over the land C.

       3. The land C is a servient tenement only. The land A,B,and E are
       dominant tenements in relation to the right of way over it. D is neither a
       dominant or servient tenement.

Statutory Changes to the common law

In Fiji and Western Samoa it is possible to create an easement without a
dominant tenement – see later under “Easements in gross”,

   -   section 106 Property Law Act (Fiji);
   -   section 122 Property Law Act (NZ) which applies in Western Samoa).

Under legislation it is also possible to create statutory easements which allow
electricity and water supply authorities to put pipes and power lines across land
owned by others without having to buy that land.


The easement must be related to the use of the land itself (i.e. the dominant
tenement). It must not just confer a personal benefit the owner of the land.

The dominant tenement and the servient tenement do not have to be
contiguous (next to one another). However they must be close enough to
ensure that the dominant tenement receives a benefit from the right
See: (In re Ellenborough Park [19561 1 Ch 131).

In the illustration, the dominant tenement A, which is separated from the
servient tenement C by the land B, clearly receives a benefit from the right of
way over C.


At common law the rule was that the owners of the dominant tenement and the
servient tenement must be separate persons. This rule applies in Tonga and
Samoa. In Fiji, Solomon Islands and Vanuatu where there are Torrens
systems of land registration, once an easement in registered as an interest in
land on the titles to the dominant and servient land, it remains registered even if
those two pieces of land are owned by the same person. During that time there
is no need for the easement, but when the land is resold there will be the need
for the easement again.


The right must be sufficiently defined and certain to be capable of being
granted. For example: it is possible to grant easement of light where a defined
window receives a defined amount of light. However there can be no
easement of indefinite privacy nor can there be an easement to preserve a
view. A list of some of the easements recognised by the courts has been given


Easements in gross are the exception to normal rules about easements which
require that there be a dominant tenement to which the easements is attached.
An easement in gross is an easement without a dominant tenement.

The common law did not allow such easements (Ackroyd v Smith (1850) 138
ER 68; [1843-601 AIIER Rep 512). They could be created as personal rights
which did not run with the servient tenement so did not bind any subsequent
purchaser of the servient tenement.


Nevertheless they may be allowed by statute. In Fiji section 106 of the Property
Law Act allows the creation of easements in gross which run with and bind the
land over which they are created. They may also be registered (sections 49
and 50 Land Transfer Act).

The provision which applies in Western Samoa (section 122 of the Property
Law Act of New Zealand) is identical with the Fiji provision. It states:

       An easement over land may be created without being attached or made
       appurtenant to other land, and such an easement shall run with and
       bind the land over which it is created, and all persons claiming title to
       that land by, through or under the person creating the easement; and
       the easement so created shall be to all intents and purposes an
       incorporeal heriditament, and shall be assignable accordingly.

In Samoa, these easements may be registered under the Samoan Registration

There are no general provisions of this kind in Solomon Islands, Tonga and
Vanuatu. Nevertheless it is possible to provide in special legislation for
easements in gross for government bodies which provide services like
electricity and telephones. Easements in gross to allow such authorities to run
the lines above or under the land of others are common in the legislation of
other countries.



In Fiji the owners of freehold and leasehold estates in land may create and
register easements including easements in gross (sections 49 and 50 Land
Transfer Act).


The same may be done in Solomon Islands by the owners of perpetual, fixed
term and leasehold estates (section 165 Land and Titles Act). In Vanuatu the
owners of leasehold estates may create easements over those estates (section
16 Land Leases Act).


In Tonga interests in land may be created either in the manner set out in the
Land Act or with the written approval of the Minister of Lands (section 13). The
Act does not deal with easements so the primary way they may be created is
with the written approval of the Minister. It must also be possible to imply
easements of necessity in Tonga. Whether easements may be established by
prescription in Tonga is a moot point.


In Samoa the Property Law Act (NZ) which applies there permits easements in
gross to he created (section 122). It also provides a particular regime for the
creating of easements relating to light and air (sections 124 and 125). More
importantly, when leasing public land, the Land Board may create rights of
access to water, rights of way or other easements for the benefit of that land
over other government land. These easements may be registered with the
Land Registrar.


The common law in relation to the creation of easements would apply to allow
the creation of easements on freehold land and on leased public, freehold and
customary land. To create an easement there must be a grant of the
easement by deed or other writing from the owner of the servient tenement to
the owner of the dominant tenement. To Be effective, easements so created
must be registered under the deeds registration system administered by the
Land Registrar.

In Tonga easements may be created in the royal estates, hereditary estates,
over tax and town allotments and leasehold estates over any of these. In
Samoa easements may be created over freehold and leasehold estates in
freehold and public (government) land and leasehold estates on customary


The common law recognised implied easements in two situations. The first
was where it was the common intention of the parties that an easement should
exist. The second was where an easement had to be recognised of necessity.
An example of the second kind of easement would be where a Tongan man
was granted a tax allotment on an hereditary estate which was separated from
the road by the noble's land. In that situation the common law would imply a
grant of an easement with the tax allotment being the dominant tenement and
the noble's estate the servient tenement.

Implied easements are not consistent with the Torrens system. That system
creates indefeasible rights in land based on instruments registered under the
system. Where easements are implied there are no documents - no
instruments to register. Implied easements of necessity may be enforceable
against those who create the circumstances of the necessity; but it is unlikely
that they will be enforceable against any subsequent registered proprietor of
the servient tenement" (Australian Hi-Fi Publications Ltd v Gehl [19791 2
NSWLR 618).


The common law recognises the creation of easements by prescription: by
continuous user over a long period of years. This method of creation of
easements is inconsistent with the Torrens system for the same reasons as
implied easements are.

In Solomon Islands the Land and Titles Act allows for obtaining perpetual,
fixed term or leasehold estates by prescription (section 204), but does NOT
provide for easements by prescription. The failure to provide for easements by
prescription carries with it the probable implication that the parliament intended
that such rights could not be created.

The same argument may be applied to Fiji. The Land Transfer Act allows for
the registration of fee simple estates after 20 years of adverse possession, but
does not apply this to any other interests in land (section 78).

       -   A Fiji case on unregistered easements and indefeasibility: Ram
           Nandan v Shiu Datt (Fiji Court of Appeal unreported 21-3-1984).

In Vanuatu the Land Leases Act does not deal with prescription. In Tonga the
land registration system makes it doubtful that easements by prescription are

In Samoa, however, it is possible to obtain interests in land by prescription. The
problem for a person claiming an easement by prescription is that for an
interest in land to be enforceable against a freehold or leasehold estate which
has been registered under the Samoan Land Registration Order is that it too
must be registered (section 8). It is not possible to register an interest in land
which arises not out of a deed or other registerable document but out of long


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