Bernie's Land To Clara

Part A
Settlement for the transfer of Bernie’s land to Clara is scheduled for September; thus, as of August, Clara is not the registered proprietor and only has an equitable interest in the land by virtue of the concluded contract for sale. Albert should be advised that if the ‘easement agreement’ between him and Bernie is registered before Clara becomes the registered proprietor, then her title to the land will be subject to the ‘easement’ and she will not be authorised to build the proposed fence. The issues are:
1. Whether the agreement between Albert and Bernie is an easement.
2. The ranking of Albert’s current interests relative to Clara’s.
3. Whether Albert has a right of action against Bernie to compel him to execute the relevant Land Title Act (LTA) documents required for registration;
Requirements for an Easement
Although Albert refers to his agreement with Bernie as an ‘easement’; it is necessary to distinguish it from a mere license. Whilst most of the elements of an easement outlined in Re Ellenborough have been established on the facts; the only issue is whether the agreement can be said to ‘accommodate the dominant tenement’.
As per Santow JA in Clos Farming, an easement ‘must be reasonably
Item M provided the right of possession was ‘subject to all existing tenancies’. The contract further stated the sale was subject to NBC perusing all leases and being satisfied with their clauses. Despite this, the Court held that this was not sufficient to amount to more than mere notice, at best, and there was no undertaking on NBC’s part. Applying this reasoning, the condition ‘subject to all easement agreements’ in Clara’s contract does not support the conclusion that Clara has undertaken to be bound by Albert’s easement. The in-personam exception cannot be