In Campbell v Hamilton  NSWCA 22, the appellant sought to argue that though he had agreed to grant an easement to the respondent, this easement did not bind future successors of the appellant’s title. The Court dismissed the appellant’s submissions highlighting that at a general level, easements are a proprietary right that will bind successors of title. Furthermore, when examining the objective intention of the instrument granting the easement, it was clear that it would bind successors. Hence, the appeal was dismissed with costs.
Mr Campbell (the Landlord) agreed to grant an easement to the Hamiltons (the Tenant) by way of a Deed of Settlement and Release. This initial transfer was not registered. Later, handwritten alterations were made to the Deed without the Landlord’s consent and was subsequently registered.
The Landlord argued that the initial transfer did not clearly indicate the benefitted land, making it non-compliant with s.88 requirements under the Conveyancing Act 1919 (NSW) and therefore unenforceable against successors in title.
In interpreting the Deed in question, the Court found that the Deed sufficiently indicated the benefitted land. Whilst the Deed possessed what were some typographical errors, the Court held that a false description will not vitiate the Deed where there is no doubt with regard to what is actually meant. Furthermore, it was found that even if the typographical error left some doubt, the benefitted land was clearly indicated in a subsequent annexure rendering the Landlord’s submissions ineffectual.
In further support of the Tenant, the Court highlighted that because the initial Deed was not registered, it was possible for the Court to consider the objective intention of both parties when entering into the Deed by considering surrounding circumstances.
In light of this, the Court observed that easements are not personal rights, but rather proprietary in nature; the right ‘runs with the land’. Although the Landlord argued that an unclear description of an easement would not bind future successors in title, the Court held that such a qualifier under the Conveyancing Act did not change the ordinary meaning of an ‘easement’.
Accordingly, the Court highlighted that the objective intention of the parties to the Deed was to create an easement given that an intention for the easement not to apply to successors in the Landlord’s title did not distinguish between an easement and a contractual licence. Given that the Heads of Agreement clearly used the term ‘easement’, the intention of the parties was to create a right of a proprietary nature.
1. The most effective means of cementing the clarity of an agreement and avoid dispute is by registering rights of a proprietary nature with the Land Registry Services NSW. Failure to register allows for the surrounding circumstances of an agreement to then be considered in the resolution of a dispute.
2. An easement will generally bind successors in both the landlord and tenant’s title. If this is not the intention of the easement, a contractual licence would be a more appropriate instrument.