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...
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...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.
The amendments to the Land Title Act 1994 introduced in s. 185(1A) and s. 11A requiring reasonable steps to be taken to ensure the person who executed the instrument as mortgagor is identical with the person who is, or who is about to become, the registered proprietor of the
Gummow and Bell JJ concluded that clause 1 of the Deed signed Rural’s debts and its interests under the loan agreements to Equuscorp. Their Honours observed that the phrase “other remedies for these matters” located in clause 2 assigned a claim in restitution for money had and received . Heydon J agreed with this decision on similar grounds .
The Land Reform Act of 1967 permitted the state of Hawaii to redistribute land by condemning and acquiring private property from landlords (the lessors) in order to sell it to another private owner, in this case, their tenants (the lessees). The Hawaii State Legislature passed the Land Reform Act after discovering that nearly forty-seven percent (47%) of the state was owned by only seventy-two (72) private land owners. That meant that only forty-nine percent of Hawaii was owned by the State and Federal Govermnet.The contested statute gave lessees of single family homes the right to invoke the government's power of eminent domain to purchase the property that they leased, even if the landowner objected. The challengers of the statue (the land owners) claimed that such a condemnation was not a taking for public use because the property, once condemned by the state, was promptly turned over to the lessee (a private ...
Since the Council meeting on March 31, the issue has become both more contentious and complicated. The Council voted on September 1 to rescind their approval of the new zoning. However, the developer submitted their proposed plans for the site a day prior, which under a new state law, allows for the retail zoning to stand. The “time of application” l...
Procedural History: Claim was filed against decedent 's (Jack Tallas) estate to recover on written agreement to make the claimant (Peter Dementas) an heir for the amount of $50,000. The Third District Court of Salt Lake County held in favor for the estate. Dementas challenged the initial verdict in Utah’s Court of Appeals, Orme, J.. In this appeal, the court held that agreement was not an enforceable contract in that it constituted a promise for past services performed gratuitously.
The need for the law to recognise possessory and equitable interests in land under a system of registration of title is a contested issue in Australia. The term ‘title’ means the extent of ownership over property as recognised by the legal system. For the purpose of this essay, a system of registration of title means the Torrens title system. The protection of possessory and equitable interests in Western Australia will be discussed, with reference to the Torrens title system and real property. It will be argued that there is still a need for the law to recognise equitable interests in land, however, the Torrens framework does remove the need for the law for the law to recognise possessory interests, in particular the doctrine of adverse possession.
The issue is what duty of care did C.D. Management owe to Richard. Mounsey v. Ellard, held that a landowner owes a duty of reasonable care to all lawful visitors. 363 Mass. 693, 707 (1973). The Court stated “that there is significant difference in the legal status of one who trespasses on another's land as opposed to one who is on the land under some color of right-such as a licensee or invitee.” Id at n.7. Although the general rule for care owed to trespassers is to refrain from willful, wanton, or reckless conduct. Schofield v. Merrill 386 Mass. 244, 245 (1982). Mounsey allowed for the possibility of exceptions when dealing with trespassers, “The possible difference in classes of trespassers is miniscule compared to the
Edwards's contract required him to respect all prior legal claims. He “issued a notice that all who had such claims should present them to him to be passed upon. Haden Edwards tried to eject settlers who could not show clear title.” (Ericson, 2003) The claims of the people he believed would be allowed to keep their land and the claims of those he
What she does wish to do is to fence off the plot of land which
When the government needs someone’s land they do ask to buy first, however if the owner does not want to sell, that is when eminent domain is put into place. If the government wants the land and the owner refuses to sell they are still compensated for the cost of land, which is stated in the Fifth Amendment of the U.S. Constitution. Eminent was put in place so that private land could be used to public use to better the state or country depending on the situation. Some feel that this is not right, that eminent domain takes away from a person’s personal rights to own land.
A license is a personal revocable privilege or permission to enter a property, such as a cable company is granted to enter your property for installation. A license requires no formalities. On the other hand, an easement must be in writing to be actual. A easement is a irrevocable right granted to a non-owner of a property for a specific purpose.
According to the Murr family, they are separate and legally-distinct lots which should allow them to develop and sell the lots as they see fit. The Murrs are not questioning whether a takings claim has occurred, but rather want to know what unit of property is actually being considered if there were a taking claim. The parents of Murr bought each Lot separately and did not merge the lots. The Murr siblings now did not merge the Lots except to better abide by the St. Croix County ordinance, but that same ordinance is restricting their rights to sell one of the Lots that they still believe to be separate, distinct lots. The petitioner’s argument is one for private property rights that supersede the state laws that establish the property in the
The case I chose to do was Patrick Joseph Potter, Appellant, v. Green Meadows, Par 3, Appellee. The case was found in the Southern Reporter, volume 510 starting on page 1225. The District Court of Appeal of Florida, First District heard the case and made its decision on August 13, 1987; 510 So. 2d 1225 (Fla. App. 1 Dist. 1987).
The expansion of the United States is such a vital part of American history, yet some often forget how it all happened. Many thriving settlers were given an extraordinary opportunity starting on January 1, 1863 that would end up laying the floor work for many Midwestern and Western citizens today. The rights and responsibilities to live on and maintain 160 acres of land may seem like a lot to take in for a student learning about an Act about land from the 1860s. However, think about all the people the Homestead Act of 1862 affected. There was a lot of pressure on the original homesteaders to make good use of their newfound land, the government was giving out land that wasn’t exactly theirs, and the Native American would have some their rights stolen.
One of the special concepts in land law is of overriding interests. The standard practice in the English land law is all the interest and rights affecting or is binding over particular a land should be registered in the Register. However, the concept of overriding interest denotes that there are interests which are binding on the owner (the registered proprietor) regardless of not being formally registered. It was introduced because in that era it was though that it would be unreasonable and unjust to overlook such rights and interest enjoyed. Overriding interests need not be registration to bind the legal owner of the land. Therefore, if the land is sold to another person the interests and rights would not be lost. It can be said that overriding by nature are unregistered if they are registered they will cease to be an overriding interest.