Jim has come for advice about easement and he wants to exclude Jesse’s clients from the car park. The fact suggests that the easement was created by the previous owner and registered under Torrens. By registration, the easement and the accompanied plan will be transferred and into Jim’s certificate of title-schedule 2 . It is an express easement and it is legal; not equitable. It is also indefeasible as no exception appears to apply in this case. Jesse is a dominant tenement (“DT”) as he owns the land that benefiting from the right of car park and Jim is a servient tenement (ST”) as he is burdened by the easement. In order to advise Jim if he can exclude Jesse’s clients from the car park, the validity of the Easement will need to be examined. Furthermore, it is essential to determine if the Easement is extinguishable.
Characteristics of easement
Easement in Jim’s property is a proprietary right and an interest in land. Easement have 4 essential characteristics as outlined in Re Ellenborough Park included “1) There must be a dominant DT and a servient tenement ST; 2) The easement must accommodate the DT; 3) The same person must not own and occupy the DT and ST; and 4) The right claimed as an easement must be capable of forming the subject matter of a grant.” The easement of property 78/89989 has the above characteristics 1 and 3. The 2nd and the 4th characteristics will be further discussed.
Invalidity of easement
The 2nd characteristic is “the easement must accommodate the DT leading to benefit the DT and to be connected with its enjoyment”. A personal privilege or commercial advantage, with an intention to benefit the owner of DT that is not connected with the occupation of the land; will not be defined as an easeme...
... middle of paper ...
...wner’s right to reasonably use of his land . Moreover, easement requires the burdened owner retains possession and, has the reasonable exercise of the right in controlling his land . Both tests are essential for Jim to be succeeded in his case. These tests help Jim to prove his case to the court to support extinguishing the easement as Jesse’s business occupying 4/5 parking spots; it constitutes an unreasonable proposition. Jim cannot reasonably use of his car park (he only has 1/5 spot) and has minimal control of his property’s car park.
In conclusion, Jim can argue the invalidity of the Easement and to make an application to the court to extinguish the easement as per CA s89. If Jim is successful in extinguishing the easement, Jesse’s remedies may include claiming for damages, abatement, declaration of rights and injunction.
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