4 characteristics of easements (1 Viewer)

[= Jennifer =]

ok guys with the third one it is

the same person must not own and occupy the dominant and servient tenement

ok my question is say if person A owned property 1 and 2 but leased out property 2 to person B.

how do scenarios like this affect this 3rd element?

thanks

 

[= Jennifer =]

dw i found it professor peter butt has all the answers

for those who were wandering or need a refresher:

In New South Wales, the principle that a person cannot have an easement over his or her land has been modified by statute. First under s 88B Conveyancing Act 1919 (NSW) the registration or recording of a plan of land, indicating an easement intended to be created, creates an easement even though the land benefited and the land burdened are the same ownership (s 88B(3)(c)(ii)). S 88B applies to land under old system title and to land under Torrens title (Conveyancing Act 1919 (NSW) s 69). Secondly under s 46A RPA 1900, a person may create an easement despite owning both the benefited and the burdened lad, if both parcels are Torrens Title.

(Butt 2006 p 426)

 

[Frigid]

the same person must not own and occupy the dominant and servient tenement

ok my question is say if person A owned property 1 and 2 but leased out property 2 to person B.

no, Professor Butt didn't - you answered your own question.

by definition, if B was in possession of the leased premises, then A cannot be (remember a lease must give exclusive possession?).

So even if A was in possession of property 1, A is not in possession of property 2.

Thus A does not offend the rule that 'the same person cannot own and occupy the dominant and servient tenement'.

 

[MoonlightSonata]

Peter Butt's Land Law is brilliant. I recommend it to everyone!

 

[= Jennifer =]

no, Professor Butt didn't - you answered your own question.

by definition, if B was in possession of the leased premises, then A cannot be (remember a lease must give exclusive possession?).

So even if A was in possession of property 1, A is not in possession of property 2.

Thus A does not offend the rule that 'the same person cannot own and occupy the dominant and servient tenement'.

hehehe oh yeah lol

once again Frigid saves the day

 

[dissipate]

Peter Butt's Land Law is brilliant. I recommend it to everyone!

agreed!! he explains everything fantastically clearly and well.

 

[Frigid]

agreed!! he explains everything fantastically clearly and well.

i thought you were in second year, UNSW?

 

[dissipate]

i thought you were in second year, UNSW?

??
1st year UWA

 

[Frigid]

doing real prop already? wow, UWA starts early...

 

[neo o]

doing real prop already? wow, UWA starts early...

Straight LLB perhaps?

 

[dissipate]

Straight LLB perhaps?

grad law