These cases confirmed that a fencing easement can arise by virtue of prescription or lost modern grant a legal fiction based on proving that a use or thing has been ongoing for a long time therefore creating a presumption that there must have been an express grant of this right which has since been lost.
The High Court concluded that as a fencing easement can be established by way of lost modern grant it must follow that they can be granted expressly, such as by a conveyance. Whether a clause in a conveyance does in fact create a fencing easement however is a question of fact based on the construction of the clause. The High Court reviewed the wording of the fencing obligation contained in the conveyance against the four requirements that must be satisfied in order for an easement to be established:.
On this basis the High Court found that on a true construction of the wording of the clause an easement to maintain the fence was created. This showed that the parties intended for the obligation to run with the land. The High Court have expanded on previous decisions relating to fencing easements and how they can be established, confirming that they can be created by way of an express grant.
This appears to create an exception to the established principle that a positive covenant would not bind successors in title without a chain of subsequent covenants being provided. Whether similar obligations to erect and maintain fences will also be found to be an easement will depend on the true construction of the clause.
First, Second or Third Name. What are Easements? I have an Easement shown on my Property survey. What does this mean for me? An easement is a portion of land that has been set-aside for a specific purpose. Easements give the City of Garden City or Utility Companies the right to construct and maintain facilities within the designated areas.
Is it still my property? Yes, the easement is still your property. However, it does have restrictions and responsibilities for you as an owner or resident. Talk to your neighbour Agreement in writing Enforcing an agreement Finding your neighbour How to talk to your neighbour Cannot agree?
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Time limits Are you an employee or contractor? Are you a casual employee? How long have you been employed? What constitutes an obstruction to a right of way? Generally, a right of way is defined as being the legal right to access their property by passing through land or property belonging to someone else.
If your right of way is blocked, you can use a reasonable alternative path, as long as you don't enter onto the land of a 3rd party. Who's responsible for maintaining an easement? One issue that comes up from time to time is whose responsibility it is to maintain an easement. The short answer is — the owner of the easement is responsible for maintaining the easement. Is a private road an easement? An easement is a legal right to a limited use of another's property. You may need an access easement to cross over someone else's property to enter or exit your own property.
You may need an easement on a private road that will allow you access to the property and ensure you can get to the main roads in the area. How do you negotiate an easement? Remember, this isn't an exhaustive list, and any landowner negotiating an easement agreement should hire an attorney to represent his or her interests.
See that the easement is specific, not blanket. Grant a nonexclusive easement. Check restrictive covenants. Reserve surface use. Set specific restoration standards.
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