Barrister and mediator, Sydney Jacobs continues his series by providing a brief overview into modifying or extinguishing a covenant of easement. He will be delving further into this topic at his upcoming presentation at the 6th Annual Property Law Conference on Wednesday 4 March 2020. For more, follow his property series here.
The difficulties in seeking declarations that easements and covenants have been abandoned or are obsolete.
Sec 49 Real Property Act clothes the Registrar-General with a discretion to cancel a recording relating to an easement in the Register if the easement has been abandoned and stipulates that “An easement may be treated as abandoned if the Registrar-General is satisfied it has not been used for at least 20 years before the application…………”
Sec 89 of the Conveyancing Act clothes the court with a much wider discretionary jurisdiction to modify or wholly or partially extinguish inter alia, an easement , profit a prendre and the like, upon being satisfied that by reason of change in the user of any land having the benefit of the easement, etc or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement etc ought to be deemed obsolete, or that its continued existence would impede the reasonable user of the land subject to the easement etc without securing practical benefit to the persons entitled to the easement etc, or that its been abandoned or waived.
Sec 49 RPA is an administrative process, on prescribed forms. Sec 89 is a judicial process, via Summons and affidavit. It will be obvious at first glance that there are different strategic considerations in going down one path or another, for example only costs , and rights to appeal/ review. Also, Sec 89 CA is , facially, a much wider section than Sec 49 RPA-it has more “gateways” to seeking to amendment the register, than abandonment.
According to the Second Reading Speech for Sec 49 RPA:
As it has proven almost impossible to establish abandonment according to the complex rules that apply at common law this provision provides a simplified statutory basis for abandonment of easements ……………………………………..However should someone dispute an application to the Registrar General for abandonment of easement then this issue is dealt with by the Supreme Court under section 89 of the Conveyancing Act 1919 and not section 49 of the Real Property Act 1900.
Naturally, this was so apparently so obvious that it does not seem to have been said explicitly in the actual legislation! So that leaves constructional issues up in the air for future determination.
- An easement can be abandoned both at common law and under the Conveyancing Act: Grill v Hockey (1991) 5 BPR 11421
- Abandonment occurs when “the dominant owner has made it clear that neither he nor his successors in title will make any use of the easement though it is not to be lightly inferred. ………….. what one must look for is evidence that there has been an implied (or lost modern deed of) release of the easement. Long non-user will be good evidence, but will not necessarily be sufficient to establish abandonment…………….” at  of Chiu v Healey  NSWSC 857
- mere non-user without more, however long, cannot amount to abandonment” and “such non-user is evidence from which abandonment may be inferred but must be regarded in the context of the circumstances as a whole”: para  of Effeney v Millar Investments Pty Ltd  NSWSC 708
- abandonment depends on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement;
- abandonment is not to be lightly inferred; owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it : Odey v Barber EWHC 3109 (Ch) at , per Silber J in dicta
- It is insufficient to show abandonment merely that the owner of the dominant tenement is unable to use the easement, particularly if the inability to use it is not permanent : Ecclesiastical Commissioners for England v Kino (1880) 14 Ch D 213
Case example : Chiu v Healey  NSWSC 857
The defendant contended for abandonment, on the ground inter alia that the easement had been bricked up by a wall for about 30 years. Young CJ in Eq gave short shrift to this position at para , as follows:
In my view this comes nowhere near the evidence needed to show abandonment. All it indicates is that for a period of time the plaintiff was prepared not to use his backyard or at least not to use it except by getting access through his own property. There have been continuous improvements of both properties over the years and I would think it would be quite unsafe to infer abandonment.
There is a developed body of law in Australia and England as to cases on abandonment of easement, profits a prendre, covenants, and also the other categories only found in Sec 89 CA , eg change in character of the neighbourhood; what is meant by partial modification, and the like. The law is complex and the court’s and also the RG’s jurisdiction is discretionary (see the use of the word “may” in the legislation referred to).
Those contending for abandonment have their work cut out for them.
A more fulsome article on this topic, with further cases, will be uploaded to the 13th Floor website after I deliver a lecture for Legalwise in early March 2020.
Sydney Jacobs is a barrister at 13th Wentworth Chambers. He is also an accredited Mediator and Arbitrator. Sydney read for his LL.M at Cambridge University, England. He has a general commercial equity practice including partnership disputes, property litigation (e.g. easements, leasing matters, contracts for the sale of land off the plan, relief against forfeiture of deposits) and building & construction disputes. He is the sole author of two major loose-leaf services, namely: Damages in a Commercial Context, and Injunctions: Law and Practice, both published by Thomson Reuters. He part authors the leading work, Commercial & International Arbitration, likewise published by Thomson Reuters. You may connect with Sydney via email firstname.lastname@example.org or LinkedIn
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