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task 1 property law

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Central Queensland University

Academic year: 2019/2020

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Central Queensland University

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Baileigh Wright Property Law B Student Number: 1114745

Question 1: Can the crews rely on the original easement?

The purpose of the easement

The second easement was an ‘access easement’, the purpose being to grant pedestrian and vehicle access. Subsequent registered owners of the Servient Tenement are bound by all registered easements but not unregistered. 1 The access easement was registered, meaning that the dominant and servient tenement must comply. 2

The construction and purpose of an easement must be consistent with public interest as seen in section 180 of the property law act. 3 The purpose of the access easement was to grant admittance to pedestrians and vehicles, but it only allows for standard vehicle access due to the fence constructed at lot 1. A statutory easement can only be exercised when it does not interfere unreasonably with the use and enjoyment of a lot or property. 4 An easement can not be exercised in a way that interferes unreasonably with the rights of other users as seen in Jelbert v Davis. 5

Misdescribed easement

The purpose of the ‘access and utilities easement’ was made to allow pedestrian, vehicle and connection for service and utilities, the easement failed to be registered. Unregistered easements are not binding. 6 Unless the exceptions being Freud or misdescribed easements. 7 As seen in Christopoulos v kells, the easement was not registered due to error. 8

Extinguishing an easement

A dominant tenement being landlocked does not constitute automatically the imposition of a statutory easement. 9 Leaving an individual landlocked in property is not within the public interest, as seen in the case of Ex Parte Edward Street Properties Pty ltd. Imposed by court orders in s 180 of the Property Law Act. 10

1 Land Title Act 1994 (Cth) s 184. 2 Ibid s 185. 3 Property Law Act 1974 (CTH) s 180. 4 Body Corporate and Community Management Act 1997 (CTH) s 68 (1). 5 Jelbert v Davis [1968] 1 WLR 589, CA. 6 Land Title Act (n 1) s 82, 83.

7 Ibid s 184, 185. 8 Christopoulos v Kells (1988) 13 NSWLR 541. 9 Property Law Act (n 3). 10 Ex Parte Edward Street Properties Pty Ltd [1977] Qd R 86.

Baileigh Wright Property Law B Student Number: 1114745

Question 2

Compel the Stickley’s to comply with original easement

Obligation of a buyer

Vendors have an obligation to disclose all information regarding an easement in regard to the land or property that they are proposing to sell, a buyer has an obligation in ensuring that they are aware of the impact of that easement on that property. 11

Indefeasibility of title

Indefeasibility of title means the registered proprietor holds subject to registered interest free from all other interest section 184 of the land title act. 12 A registered proprietor is not affected by actual of constructed notice of an unregistered interest affecting the lot. The 4 elements being

Priority over unregistered rights
Protection from notice
Priority of possession
Protection of purchaser. 13

In the case of Corinne Court v Shean Pty Ltd, it was held that an easement was indefeasible even if alleged defects occur in its execution are established. 14 In the case of Pike & Anor v Tighe & Ors it was argued if indefeasibility of title is evident despite non compliance with development approval conditions. 15

Development approval conditions

The development and approval conditions are binding on both owners, if there is non compliance occurs the planning and environmental court has a discretionary power to make an enforcement order as seen in the case Pike & Anor v Tighe & Ors. 16

The conditions of a development remain binding to the land, and the land subsequently issuing from it. The decision effects developers and purchasers, implications do occur as seen in the case of Pike v Tigh. 17 The high Court determined that the conditions of the development approval remained binding to owners as seen in section 245 of the sustainable planning act. 18

Conclusion

More information is needed.

Bibliography

11 Somerville Laundry Lomax Solicitors, Understanding Easements in your Property Contract (web page) < Understanding easements in your property contract - Somerville Laundry Lomax (sll.com)>. 12 Land Title Act (n 1) s 184. 13 Ibid. 14 The Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd (2000) WASC 181 WAR 1. 15 Pike v Tighe [2016] QPEC 30. 16 Ibid. 17 Sustainable Planning Act 2009 (Cth) s 245. 18 Ibid.

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