1. What are the requirements of an easement?

2. What will be the effect of registering an easement that does not comply with the substantive requirements? (seeClos Farming v Easton)

3. What is the possibility of an easement by implication arising under the Torrens system? Consider the omitted easement exception under s 42(1)(a1)Real Property Act 1900(NSW) and thein personamexception.

Problem Question 1

22 years ago Anna decided to sell three adjoining blocks of Torrens title land that she owned in the Blue Mountains, New South Wales. Michael, Lois and Jim who were good friends bought the properties intending to use them as weekenders for themselves and their families. Michael's property (Lot 1) has direct access to the adjoining main road. Both Lois (lot 3) and Jim (Lot 2), need to use a driveway that runs over Michael's property in order to reach their own land located at the rear of Michael's property. At the time Jim purchased his lot, his solicitor told Jim that Anna was willing to make a registered easement over the land that was to be sold to Michael at a price of $10,000. Jim didn't think this was necessary as he and Michael were friends and he thought that Michael would have no problem with his continued use of the driveway. He did not talk to Michael about this issue but has been using the driveway over Michael's land, with Michael's permission, for the last 22 years as he has no other convenient means of accessing the main road. Lois paid the additional $10,000 and was granted an easement by Anna to "pass and repass over Lot 1 in order to reach Lot 3". This easement has been properly registered on the folios of both Lots 1 and 3.

Michael and Jim fall out and Michael tells Jim that he can no longer use the driveway but will need to find some alternative means of access to his property. He constructs a fence across the driveway and a gate that can only be opened by entering a code onto a keypad. He has given Lois the code and she continued to use the driveway. Lois feels sorry for Jim and has passed the code on to Jim, but Michael is threatening legal action for trespass if Jim continues to drive across his property.

Advise Michael, Lois and Jim of their rights in relation to the driveway.

Problem Question 2

Rick (Lot 1/DP 657483) and Silvia (Lot 2/DP657483) own adjoining properties in the Hunter Valley New South Wales. Rick has an established vineyard and horse stud on his property and Silvia's is currently undeveloped rural land. Upon payment from Rick to Silvia of $20,000 Silvia grants the following rights to Rick by execution of a standard Real Property Act dealing form:

"The non-exclusive right for Rick, or the owner from time to time of Lot 1/DP657483, to enter, go, pass, repass, turn around and remain upon Lot 2/DP657483 for the purposes of parking farm machinery or for the storage of building materials or animal food on any part of the land."

The dealing is registered as an easement on the folios of both Rick and Silvia's properties and appears on the Register. The instrument also otherwise complies with s 88(1),Conveyancing Act1919 (NSW). Silvia then sells her property to Percy. After the transfer to Percy is completed, he became the registered proprietor. The easement is no longer noted in the second schedule of encumbrances for Lot 2/DP657483. This has apparently been caused by an oversight upon registration in the Land Registry Service.

Percy wants to start farming the whole of his land and asks you whether or not he is entitled to plant grape vines over the whole surface of his land so that he can also start producing wine.