The first issue is related to the extent of the use of the right of way by the dominant tenement and will be addressed in this order
I. Whether parties to the easement intended for the right of way to include vehicular use at the time of creation;
II. Is there a restriction on an increased use of the right of way by dominant tenement;
III. Whether dominant tenement can remove ti tree from the right of way which have always grown on it;
The structure on the dominant tenement is, and has always been, a motel. When the original easement was created, the Summer Island had begun developing as a holiday destination. The easement was granted in 1924 and provided the grantor and grantee a “full and free right to go, pass, and re-pass” with the intent that it be forever “appurtenant to [the motel]”. At the time of creation the right of way was not limited; a restriction was not placed on vehicular access, the right to pass and repass on the right of way could be exercised freely. A right of way includes the right to go over the easement with or without any kind of vehicle. On application, a court may modify the easement if satisfied that the continuation of the easement in its existing form would impede the reasonable use of the land to a different extent than what could be reasonably foreseen by the original parties to the easement when created. The foreseeability of the use of the land must be determined. With the developing island in mind, it is reasonable to assume that the original parties to the easement intended for the motel to become a popular tourist retreat- making the extent of the use of the land foreseeable.
On first reading the terms of the grant it appears that there is nothing preventing the use of the right of way by motel customers. It is a widely drafted right of way that should not be interpreted narrowly just because it inconveniences the owner of the servient tenement. It is held that there can be no limited use of a grant, and that increase in use by a dominant tenement is not in breach. The right of way makes no stipulation as to who can use it besides mentioning that the right of way will be forever appurtenant to the motel. This does nothing to narrow the scope of the easement. Jelbert v Davis thought that any restrictions depended on what was contemplated at the time of the original grant. If the intention of the original parties was to restrict the easement to the right of way then it should have been specified in the grant. The language used in the grant did nothing to restrict the use of the right of way. Instead the words “the intent that the right-of-way hereby created shall be forever hereafter appurtenant to [the Motel]” provide an unrestricted right of the dominant tenement to access the business.
Whether a dominant tenement has the right to remove the tree that has always grown on the property depends on if the alterations are necessary. The Common Law has held that alterations must be necessary and linked to the establishment, repairs, maintenance or upkeep of the driveway. Further, dominant owners are able to enter onto the servient land in order to construct a right of way suitable for the right granted to them. The only rights the easement holder has is the right to use the property pursuant to the terms of the easement. It does not provide any other rights, or take away the servient owners right to use or manage their property. The removal of the ti tree cannot be said to be necessary to the upkeep of the property.
Legal issues concerning the covenant:
Firstly, it must be determined whether the covenant can be enforced in the absence of an interest noted on the register. Notation of a covenant does not in any way give a covenant any greater operation that it would otherwise have. The principle is that a covenant could bind the conscience of a bona fide purchaser of servient land with notice of the covenant. For a covenant to run with the land it must touch and concern the property. Further, there must be a use of the covenantors land that is intended to benefit the owner of the covenantee’s land, and no privity of estate between the covenantor and covenantee. Touch and concern determines if there is both a burdened and benefitting land, and if they are within close proximity of each other so that a breach of the covenant would be detrimental to the benefitting party’s enjoyment of the property. A common intention to benefit the covenantee land by allowing visitors to access the covenantee land by crossing the covenantor land is apparent. Furthermore, privity of estate is non-existent as both parties have separate estates.
Every covenant to which the above section applies is binding in equity on every person who acquires a fee-simple estate in the land, and every person who is for the time being occupier of the land. Presently, the purchaser of the estate does not intend to uphold the covenant. The existence of the covenant affects the purchase price. It is inequitable for a purchaser to buy land discounted land burdened by a covenant but refuse to recognise it. A purchaser of land will be prejudicially affected if he reasonably ought to have knowledge of any instrument. The purchaser was informed of the covenant and decided to disregard it. However, this is not possible if it can be confirmed that the covenant is enforceable in equity.
Argument for no lease of garage:
To create a legal assignment of lease, a written deed of assignment must be completed and signed by all parties including the landlord. A lessor will likely be in breach of their lease without consent to assign lease as most leases specifically require a license to assign. All registered interests are legal interests. Further, an instrument has no effect to create, transfer, or otherwise affect an estate or interest in land until the instrument is registered. Sally may argue that she did not sign the document and landlord consent was not granted so the interest in the land cannot transfer. However, this will fail as there is enough evidence for equity to enforce the agreement.
Is there a legal right to require the assignment of lease to be completed:
I. Part performance
The doctrine of part performance gives the Court power to enforce an agreement that would be enforceable but for the requirement for writing. The requirement that no legal interest in land may be created except by writing signed by the person, or agent acting on his behalf does not affect the operation of the law relating to part performance. An oral contract must be established and exist independently of the part performance analysis. Tipping in Dellaca held the test for part performance as follows:
1) Sufficient oral agreement such as would be enforceable but for the Act
2) Part performance of the oral agreement by the doing of something which:
- Clearly amounts to a step in the performance of a contractual obligation;
- Was, on the probabilities, done on the footing that a contract relating to the land interest was in existence;
3) Do the circumstances in which the part performance took place make it unconscionable for the defendant to rely on the Act.
An oral agreement was formed and sealed with a handshake. Later, the assignee had a lawyer draft an assignment of lease document and associated legal costs were paid- as per the agreement. The assignee then traded his Pajero for a newer model on the footing that the contract was in existence. To retract the agreement at this stage would be unconscionable as it is to the detriment of the assignee whose performance conveys his reliance upon the agreement. Furthermore, the assignor had given no indication of an intent to withdraw from the agreement, was aware of the assignee’s dependence on the lease, and accepted the benefit of the agreement.
Whether covenant 18 will be binding on Mark.
The rule in Tulk v Moxhay established that in some cases an equitable covenant may run with the land. When using this test, five requirements must be met:
1. Must be a restrictive covenant;
2. Have a burdened and benefitting land, and they should be reasonably close together;
3. The benefitting land should actually benefit;
4. The original parties must have intended for the covenant to run with the land;
5. The purchaser of the burdened land must have had actual notice of the covenant before purchasing the land.
The covenant is restrictive as the assignee is under a promise to refrain from driving along the road after dusk and before dawn. The burdened and benefitting land are close enough together to cause a disruption if the covenant is breached. The covenant is intended to preserve the islands nocturnal birdlife, and if followed it would contribute to the enjoyment of the land by the wildlife and aid in the islands preservation. Original parties to the contract intended for clause 18 to run with the land as it did not express a contrary intention and is specific. Lastly, the clause was written in the lease conveying that the assignee had actual notice of the covenant. Clause 18 will be binding as the present facts are able to fulfil the requirements established above.
2019-9-15-1568556469