Could an implied or prescriptive easement be valid in the NT?
Contents
1Introduction [1965]
2Unregistered Prescriptive easement enforceability against register proprietor [578]
3Unregistered implied easement enforceability against registered proprietor
4Unregistered implied and prescriptive easement enforceability against subsequent purchaser [413]
5Background
5.1Do implied and prescriptive easements have different doctrinal bases?
5.2Implied grants
5.2.1Wheeldon v Burrows
5.2.2General words
5.2.3Necessity
5.2.4Common intention
5.2.5Manner of description of the property
5.3Implied reservation
5.3.1Subdivision – Richards v Rose principle (simultaneous conveyance exception)
5.4Prescription
6Doctrine of lost modern grant
7Prescription Act 1832
7.1By estoppel
7.2Part performance
7.3By court order
8Are prescriptive easements inconsistent with or prohibited by the Law of Property Act and the Land Title Act?
8.1Creation of valid easements
8.2Adverse possession
8.3What is the effect of indefeasibility of title
1Introduction [1965]
Unregistered legal implied and prescriptive easements are not incompatible with the Torrens system and may arise in the Northern Territory either at common law through the doctrine of lost modern grant (Golding v Tanner; Delohery case) or by statute through the Prescription Act 1832 (Imp) (see Wayella Nominees Pty Ltd as Trustee for the D J Gordon Family Trust v Cowden Ltd).
Under the former legislative provisions in the NT, it was held that prescriptive easements could not arise (see Anthony v The Commonwealth), however the Law of Property Act and the Land Title Act establish a statutory regime which is permissive of implied and prescriptive easements as established below.
- The Prescription Act 1832 (Imp) which permits the creation of legal proprietary rights has not been repealed or repealedpro tantoby any later statute.
- The doctrine of the lost modern grant was a part of the common law received from England (Cross v Lewis; Delohery case[1])
- The Prescription Act 1832 (Imp) did not modify the common law (Healy v Hawkins), thus the doctrine of the lost modern grant exists (see Delohery case[2])
- Interests which arise by operation of law (LPA s 10(1)(a)(iii)) or by statute are not required to be in writing and therefore are validly created interests in land.
- The Torrens system recognises that there can be unregistered legal interests, including easements (see generally Dobbie v Davidson).
- Whether implied or prescriptive easements are incompatible with the Torrens system will depend upon the terms of the relevant statutes (Golding v Tanner). In NSW, in Kostis v Devitt, Dewhirst v Edwards, Williams v State Transit Authority of NSW and the Jobson case easements by prescription were not upheld. The NT statutes are inherently different to other jurisdictions and those decisions need to be applied with care to the NT. The Williams decision has been widely criticised by two academics; Peter Butt and B Edgeworth.
- If the legislature had intended to prohibit both adverse possession and implied easements, the parliament could have done so. The fact that adverse possession is mentioned expressly, may suggest that there has been an implied repeal of implied easements, however, this is unlikely since the Prescription Act was not repealed. Fiona Burns argues that since the statutes are silent and since adverse possession was abolished, prescriptive easements could not arise. (see Burns, Fiona, The Future of prescriptive easements in Australia and England, 31 MULR 2007)
- The NT statutes do not expressly preclude nor provide for any specific means of creation of implied easements. In such circumstances it has been held that implied easements could arise (see Di Masti v Piromalli).
- In NSW, an easement could only arise by a registrable instrument: Williams v State Transit Authority of NSW. It is considered that this is not the true construction of the statutes in the NT.
- Section 91 of the LTA provides that an easement may be created by registering a ‘deed of grant’ [issued by the Crown] or an instrument [including an order of the court]. Section 156 of the LPA states that ‘[a]n easement ... is created by the registration of’ a deed of grant or an instrument of easement.
- The Land Title Act was passed immediately after the Law of Property Act and thus is a later enactment of the NT parliament. The Law of Property Bill was proposed as a law reform measure in light of the fact that the existing law was based upon the laws in force in South Australia in 1836. The LTA would therefore impliedly repeal inconsistent clauses of the LPA (see Butler v Attorney-General (Vic))
- The construction of section 91 suggests that an easement could be created by other means, including by operation of law and this is made clear by section 10(1)(a)(iii) of the LPA. The explanatory memorandum of the LPA stated that section 156 was to be uniform with the LTA and that easements could be granted as specified in the Bill. Section 156 must then be read consistently with section 91. An easement could arise by operation of law and therefore any concern of adding to the legal fiction of a lost modern grant is misguided.
2Unregistered Prescriptive easement enforceability against register proprietor [578]
A registered dealing will be indefeasible, unless it can be shown that it is subject to an exception created by (i) the LTA, (ii) another statute which overrides or creates an exception to the LTA or (iii) a person has a right in personam against the registered proprietor (Frazer v Walker; Breskvar v Wall; Bahr v Nicolay (No 2)).
Therefore there are three possible means to enforce a prescriptive easement against a registered proprietor under the Torrens system as exceptions to indefeasibility:
- the interest of a person entitled to the benefit of an easement if its particulars have been omitted from or misdescribed in the land register (s 189(1)(c); or
- the in personam exception
- the Prescription Act as an exception to the LTA
Omitted or misdescribed
LTA s 189(3) defines ‘omitted’ for the purposes of 189(1)(c). ‘Misdescribed’ is not defined in the LTA or the LPA. In Williams v State Transit Authority of NSW, it was considered that the effect of the similar NSW provision was not wide enough to support an easement by prescription. See also Dobbie v Davidson.
A prescriptive easement will not be able to arise under this exception.
The in personam exception
The effect of the clauses conferring indefeasibility of title protects a transferee from defects in the title of the transferor. They do not preclude the enforcement of rights which exist personally against the registered proprietor: Frazer v Walker;Bahr v Nicholay (No 2);Breskvar v Wall;Golding v Tanner
A person has a right to bring a claim in personam against a registered proprietor, founded in law or equity, for such relief as a court acting in personam may grant (Frazer v Walker; Brekvar v Wall; Bahr v Nicolay (No 2)). By way of example, an easement may arise by estoppel (see Crabb v Arun District Council)
In Golding v Tanner, it was held that an easement arising by prescription was enforceable against the registered proprietor in personam and that registration could be sought by court order (approved in Williams v State Transit Authority of NSW by Young J, but on appeal considered incorrect by Mason P).
In McGrath v Campbell it was held that for an exception to the indefeasibility provisions of the Real Property Act 1900 NSW, ss 42 and 43, to have arisen based on a personal equity or common law right in personam, there needed to be conduct by the appellants (or those for whom they were responsible) that breached an obligation owed to the respondents or was otherwise unconscionable..
It was accepted obiter in McGrath v Campbell by Tobias JA (at 118) that it would be illogical to suggest that implied and prescriptive easements could be applied differently under the in personam exception. This is because they both arise by operation of law, notwithstanding their different doctrinal bases.
On that basis, a registered proprietor of the dominant land could seek a court order directing the servient proprietor to take all necessary steps to secure the benefit of the easement by having it registered (McGrath v Campbell).[3] The easementupon registration would therefore amount to an indefeasible interest.
The Prescription Act as an exception to the LTA
The Prescription Act 1832 operates as an exception to indefeasibility (see Golding v Tanner; Piromalli v Di Masi; Wayella Nominees Pty Ltd as Trustee for the D J Gordon Family Trust v Cowden Ltd). Therefore, provided the requisite facts are established, a court could order that the easement be registered.
3Unregistered implied easement enforceability against registered proprietor
In Wilcox v Richardson,[4] it was held that an easement arising under the doctrine in Wheeldon v Burrows could exist under the Torrens system and that although the easement was defeasible, it was enforceable in personam.
In Kebewar Pty Ltd v Harkin[5]it was held that while a Wheeldon v Burrows[6] type of easement creates rights as between the vendor and purchaser of land registered under the Real Property Act 1900 NSW , it is not enforceable against a later owner of the servient tenement and (2) The principle is equally applicable where rights created in favour of a plaintiff are personal rights enforceable only against the defendant's predecessors and not rights enforceable against the defendant, who is entitled to rely on the paramountcy of her certificate of title.
Those cases suggest that an implied easement is enforceable in personam against a registered proprietor.
4Unregistered implied and prescriptive easement enforceability against subsequent purchaser [413]
Under the LTA, upon registration of a dealing (including a void instrument), that interest or estate becomes immediately indefeasible under the mirror principle (Frazer v Walker Cf Clements v Ellis). The effect of indefeasibility is to cure the defects in the title.
Mere notice is insufficient. They must become bound either expressly or impliedly such that their conscious was bound (McGrath v Campbell)
The Torrens system is a system of title by registration, not a system of registration of title (Breskvar v Wall).
In Australian Hi-Fi Publications P/L v Gehl, an unregistered implied easement which arose the doctrine in Wheeldon v Burrows was held not to be binding on a subsequent purchaser (successor in title of the servient tenement) because to be within the ‘omitted or misdescribed’ exception, it was necessary to show that the easement was not registered ‘because something which should have been done was not done’ (at 622) In Dobbie v Davidson, Gehl’s case was overruled. ‘Omitted’ was held to mean ‘left out’ or ‘not there’.
In Golding v Tanner (1991) 56 SASR 482, it was held that the failure to register an easement acquired by prescription was not an ‘omission’.
In Dewhirst v Edwards, an easement by prescription was held not to be enforceable against a subsequent registered proprietor.
Relying upon the indefeasibility of title is not unconscionable (McGrath v Campbell). Thus, in the absence of registration, an implied easement will not be binding on a successor in title to the registered proprietor of the servient land (Golding v Turner; McGrath v Campbell; Australian Hi-Fi Publications; Salmon v Water Administration & Ministerial Corporation.)
In Pryce v McGuinness, the owner of land registered under the Real Property Act 1861 Qld sold part of the land having no frontage to a public highway and retained that part fronting the public highway. The land fronting the highway was later acquired by a bona fide purchaser for value who held it under a certificate of title on which no notification of any easement appeared. It was held that the purchaser of the land fronting the highway held it free of any easement of necessity in respect of drainage, sewerage or electricity.
Could a Plaintiff rely upon equity to give effect to an easement in such cases?
Equity’s intervention is based upon unconscionability and in such circumstances would need to compel the registered proprietor to take steps to register the interest. Therefore the interest created could only be an equitable interest based upon unconscionability.
Could the Plaintiff ask for intervention of the court?
LPA s 164(1) - Subject to this section, if, for the purposes of using land in a reasonable manner, it is necessary that there should be a statutory right of user annexed to the land, the Court may, on the application of the owner of the land, impose on other land or the owner of the other land an obligation of user that is a statutory right of user or an obligation to permit a statutory right of user in accordance with the order.
5Background
Easements can be created in four ways; expressly created, implied, prescription, or created by the court.
Easements may be implied and arise by operation of law in 5 ways; Wheeldon v Burrows, general words, necessity, common intention and manner of description of the property.
Implied reservation can arise in 2 exceptional cases; easements of necessity or on the principle of Richards v Rose.
In Australia, there are 2 methods of prescription; doctrine of lost modern grant (common law by operation of law) and Prescription Act 1832 (statutory). The Prescription Act did not modify the common law: Healy v Hawkins
Easements may also arise by estoppel, part performance and court order.
Implied and prescriptive easements arise from the common law or statute, not equity and thus are legal proprietary interests.
5.1Do implied and prescriptive easements have different doctrinal bases?
The doctrine of lost modern grant is based on a fiction whereby a court would irrebuttably presume there had been an express grant, but that the documentation had been lost. The use would be considered as of right if was shown to have been acquired without force, without secrecy and without permission (Hough v Taylor)
Wheeldon v Burrows is based upon the premise that a grantor may not derogate from their own grant by applying a presumed intention.: Harmer v Jumbil (Nigeria) Tin Areas Ltd
The simultaneous conveyance exception is based upon imputed intention which is analogous to an implied term in a contract: McGrath v Campbell
5.2Implied grants
5.2.1Wheeldon v Burrows
Wheeldon v Burrows, applied in Wilcox v Richardson (1997) 43 NSWLR 4
``all those [i] continuous and apparent easements (by which of course I mean quasi-easements) or in other words all those easements which are [ii] necessary to the reasonable enjoyment of the property granted and which [iii] have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted'' (per Thesiger J, @ p 49).
- quasi-easement refers to the situation when there was one owner, but there was an apparent easement (ie. a track)
- There need not be necessity for the easement to be found
- General principle ‘that a grantor shall not derogate from his grant’: Sovmots Ltd v Environment Secretary
- ‘convenient and comfortable enjoyment suggested as an equivalent test: Schwann v Cotton
- such rights may be needed ‘to give such business efficacy to the transaction as must have been intended at all events by both parties who are business men’: The Moorcock
5.2.2General words
Under the old system of land, where a deed of conveyance omitted to mention expressly an easement created: See Ward v Kirkland
5.2.3Necessity
An easement of necessity arises where an easement is necessary for the use of the land granted or retained.
- implied only where the land cannot be used at all: Bolton v Clutterbuck; Titchmarsh v Royston Water Co Ltd
- necessity need not exist at the time of the grant: Barry v Hasseldine
- sufficient if the parties contemplated that the necessity might arise: Davies v Sear
- only arises in order to give effect to the actual or presumed intention of the parties: North Sydney Printing v Sabemo Investments Corp Pty Ltd
- arise only in association with a severance of land: Nickerson v Barraclough
Pryce v McGuinness [1966] Qd R 591
The owner of land registered under the Real Property Act 1861 Qld sold part of the land having no frontage to a public highway and retained that part fronting the public highway. The land fronting the highway was later acquired by a bona fide purchaser for value who held it under a certificate of title on which no notification of any easement appeared.
Held: The purchaser of the land fronting the highway held it free of any easement of necessity in respect of drainage, sewerage or electricity.
5.2.4Common intention
Usually attributed to the common intention of the parties on a proper construction of a contract.
- the implication must be inherent in the very nature of the transaction itself: R J Finlayson Ltd v Elder, Smith & Co
- necessary that the parties actually intended the land granted to be used in some particular manner: Pullbach Colliery Co Ltd v Woodman
5.2.5Manner of description of the property
In the case of a grant of land described as:
- ‘bounded by’ or
- ‘abutting on’ a road, the grantor is to be regarded as having impliedly granted a right of way over the road: Mellor v Walmesley
- Principle applies to the Torrens system: Dabbs v Seaman
- ‘situated on the seashore’ created an implied easement over land to gain access to the ocean: Mellor v Walmesley
5.3Implied reservation
Easements cannot be impliedly reserved, except in 2 cases: Wheeldon v Burrows (1879) 12 Ch D 31
The 2 exceptions
- Easements of necessity; or
- Principle that reciprocal easements required to implement the common intention of the parties will be implied reserved to the grantor: Richards v Rose (1853) 9 Ex 218
5.3.1Subdivision – Richards v Rose principle (simultaneous conveyance exception)
Where the owner of land subdivides it into parcels and disposes of the parcels at the same time, the purchaser acquires the same easements over the other parcel(s) of land as if they had been retained by the common vendor: Swanborough v Coventry; Cleveland v Roberts
5.4Prescription
There are two methods relevant in Australia:
- doctrine of lost modern grant
- Prescription Act 1832
6Doctrine of lost modern grant
Pursuant to a legal fiction, the grant of an easement will be presumed irrebuttably from 20 years’ user as of right where the use has been open and uninterrupted: Delohery v Permanent Trustee Co of New South Wales; Bakewell Management Ltd v Brandwood [2004] 2 WLR 955
- it will make that use of the land legitimate by operation of law.:Maher v Bayview Golf Club Ltd [2004] NSWSC 275
- will only arise where the use was without force, secrecy or permission
If one landowner has made use of the land of another, for twenty years or more, in a way which is capable of being permitted by the grant of an easement, an easement of a type which would make that use of the land legitimate can come into existence by operation of law. Exposition of the legal history and precedents relating to prescriptive easements.: Maher v Bayview Golf Club Ltd
See
Deloherty – light and air
Angus & Co v Dalton (1877) 3 QBD 85 at 94 – revolting fiction
Cargill v Gotts [1981] 1 WLR 441; 1 All ER 682
7Prescription Act 1832
The Prescription Act 1832 was an imperial law in force in South Australia as at the date of reception (28 December 1836) and thus it is deemed to be in force in the Northern Territory (see Sources of the Law Act 1985)