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Week 2 Tutorial Questions

property law
Course

Property Law A (LAWS19035)

4 Documents
Students shared 4 documents in this course
Academic year: 2020/2021
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Central Queensland University

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Week 2 Tutorial Questions – Introduction to Easements / Creation & Construction

Suggested reading to answer these questions is the reading for the Week 2 Lecture

Question One

Melissa owns a home 1 km from Nambour Hospital, where she works as a nurse. As she works nights, she needs to drive and park close to the hospital for safety reasons. It is often difficult to find a car park. One day she strikes up a conversation with Gerry, the elderly resident of a house opposite the hospital. Gerry lives alone and no longer drives a car. She proposes an arrangement an arrangement with him under which she will have the exclusive use of his driveway to park her car. In return, she will pay him a lump sum of $5000. Gerry accepts the offer. Melissa consults you as her lawyer and asks you to prepare an instrument of easement, to give her security in case Gerry changes his mind. She also asks you to advise whether she would be able to sell the easement to another nurse if she ceases to work for the hospital. Advise her.

- Look at the right to park - 4 elements Re Ellenborough Park [1956] 1 Ch 131

  1. (There must be a dominant tenement (DT) and a servient tenement (ST).
  2. The easement must be for the benefit of (‘accommodate’) the DT
  3. The DT and ST must not be owned and occupied by the same person
  4. The easement ‘must be capable of forming the subject matter of a grant’ [ie sufficiently defined to be capable of being created as an easement in an instrument]. - The dominant tenement would be Melissa as the easement is benefiting her, the servient tenant is Gerry.

Element 1 Must be a dominant and servient tenant?

The proximity is 1km so the easement must be close enough to benefit the dominant tenant. The dominant tenement and servient tenement do not need to share a common boarder but do need to be sufficient proximate and that the easement can be said to be accommodate the dominant tenement (re Ellenborough park)

If not, this is an easement in gross which cannot exist in queensland other than a public utility

Element 2

Does the easement accommodate to the dominat tenement?

See clos farming estates v Easton.

Their must be a natural connection between the DT and ST

Element 3

The DT and ST must not be owned and occupied by the same person?

Even if the same person owns the dominat and servient tenement

Element 4

The easement ‘must be capable of forming the subject matter of a grant’ [ie sufficiently defined to be capable of being created as an easement in an instrument].

The dominant tenement would be Melissa as the easement is benefiting her, the servient tenant is Gerry.

The 3 sub questions in re Ellenborough park 3 sub questions

  1. Are the rights expressed in terms too vague and wide in character as seen in the (case clos farming)
  2. Would the rights amount to joint occupation or substantially deprive the park owner of possession as seen in (weigall v toman).
  3. Is the right merely a right to recreation, possessing/ no benefit utility to the lots.

Clos farming estate v Easton explains easement

In weigall v toman elements

-what proportion of the servient tenement does the site of the right of users affect?

  • to what extent does the right exclude the ST owner

  • whether the easement was created expressly (was it expressly created, she is coming to you and registering the easement which is what satisfies that she tried to create expressly)

  • practical considerations (some practical considerations that come into pay would be the use of it she will only be using the car when she is at work, is their available parking?. Clos farming established that the range in which an easement is created is flexible. Practical considerations also include safety.

Rights to park

Copeland v greenhalf, the courts consider the rights to park which is invalid in Copeland. The right to park. Can you distinguish some right to park cases and apply to the facts. A right to park can be an easement.

Can Melissa sell? This is burden and benefit

Is their an easement between Melissa and Gerry : the 4 elements of re ellenborugh park, its not capable of being an easement.

Question Two

Lot 1 owned by Smith and Lot 2 owned by Jones are two adjoining allotments under common law title situated in Queensland. There is a right of way over Lot 1 giving Lot 2 access to a public road. The right of way is used for access to the residential property located on Lot 2. Lot 1 also uses the right of way for parking of vehicles waiting to be repaired at his workshop. Referring to the elements of an easement identified in Re Ellenborough Park explain why this is an easement. Is it a positive or negative easement? Would your answer be any different if both Lot 1 and Lot 2 are owned by Smith?

Is it a positive or negative easement: a positive easement refers to the right of something being done and a negative easement is a right for something not to be done.

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Week 2 Tutorial Questions

Course: Property Law A (LAWS19035)

4 Documents
Students shared 4 documents in this course

University: Central Queensland University

Was this document helpful?
Week 2 Tutorial Questions – Introduction to Easements / Creation & Construction
Suggested reading to answer these questions is the reading for the Week 2 Lecture
Question One
Melissa owns a home 1 km from Nambour Hospital, where she works as a nurse. As she
works nights, she needs to drive and park close to the hospital for safety reasons. It is often
difficult to find a car park. One day she strikes up a conversation with Gerry, the elderly
resident of a house opposite the hospital. Gerry lives alone and no longer drives a car. She
proposes an arrangement an arrangement with him under which she will have the exclusive
use of his driveway to park her car. In return, she will pay him a lump sum of $5000. Gerry
accepts the offer. Melissa consults you as her lawyer and asks you to prepare an instrument
of easement, to give her security in case Gerry changes his mind. She also asks you to
advise whether she would be able to sell the easement to another nurse if she ceases to
work for the hospital. Advise her.
-Look at the right to park
-4 elements Re Ellenborough Park [1956] 1 Ch 131
1) (There must be a dominant tenement (DT) and a servient tenement (ST).
2) The easement must be for the benefit of (‘accommodate’) the DT
3) The DT and ST must not be owned and occupied by the same person
4) The easement ‘must be capable of forming the subject matter of a grant’ [ie
sufficiently defined to be capable of being created as an easement in an instrument].
-The dominant tenement would be Melissa as the easement is benefiting her, the
servient tenant is Gerry.
Element 1
Must be a dominant and servient tenant?
The proximity is 1km so the easement must be close enough to benefit the dominant
tenant. The dominant tenement and servient tenement do not need to share a common
boarder but do need to be sufficient proximate and that the easement can be said to be
accommodate the dominant tenement (re Ellenborough park)
If not, this is an easement in gross which cannot exist in queensland other than a public
utility
Element 2
Does the easement accommodate to the dominat tenement?
See clos farming estates v Easton.
Their must be a natural connection between the DT and ST
Element 3
The DT and ST must not be owned and occupied by the same person?
Even if the same person owns the dominat and servient tenement

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