Rodney a landscaper and Gardner owned 3 acres of land near Taree. In 1992 he subdivided land into 1 large lot which was surrounded by twenty small lots. He sold the small lots to purchasers. He retained a large portion on which he made a beautiful garden and pathway and pond and granted a right to purchasers to use the garden and required them to contribute to the maintenance cost of the garden. Melanie purchased one of the lot in 1992. Rodney has sold the landscaping and gardening to the developer.
What are the right to easement available to the parties?
Here in the present case the purchasers of the land have an easementory right over the garden. This right can be some general or specific part of the property. The person who is further purchasing that garden cannot restrain the purchasers of the lot to use and the beneficial enjoyment of the easementory right over the property. According to legal terms Easement means, ‘A legal right to use another’s land for specific purposes’. When someone is granted an easement over a land or property he gets a legal right to use the property but not the legal title over that property. On selling or purchasing of that property over which the easementory right is available the easement right exists for the public who is using that right. The right of easement is given only in some certain circumstance which is based on the consent of the owner.
In the given case of Regency Villas Title Ltd V. Diamond Resort (Europe) Ltd (2017) EWCA Civ 238. It was held that the question arose whether the facilities attached to the mention inside or outside like swimming pool, golf course, tennis courts, squash courts and indoor facilities were capable of existing easement. It was held that apart from indoor facilities these facilities did take effect as easement and not invalid merely on the ground that it is for amusement or recreation. This case law gave the clear justification on the right to easement.
Conclusion:
Here in this case, right to use the garden is the easementory right of the purchasers of the lot. The person who purchases the garden or landscaping can refrain them to use the garden as his easementory right which is a legal right. Now, the crux of this case is that the purchaser could refrain others to use the garden as his right to easement.
In this case, the issue is related to a Caveat registered on the title of the stock purchased and contract entered into the purchaser and seller. It was found that the title search in the Contract shows a Caveat registered on the title. When you send requisitions to the vendor’s conveyancer, Michael, he gave the notice of Rescission due to the purchaser’s failure to waive the requisition. In this case, it was found that party to the vendor agreement or contract must exercise the right of recession reasonably and in good faith and not capriciously. Nevertheless, if Michael should have send the notice of the rescission to Stephen.
Whether the party to the vendor purchase agreement or contract is liable to rescind the contract on any terms?
What would be the condition to rescind the contract by the purchaser ?
In the case given, State Trading Corp of India v M Golodetz Ltd [1989] 2 Lloyd’s Rep 277 it is found that when vendor wants to rescind the contract then he needs to send prior notice of rescission in the given time. In this case, Stephen did not get any notice prior for the rescission of the contract. However, in this case, Stephen proper reply to requisitions send by him to Michael but due to some issues Michael fails to communicate the same. In this case, Michael cannot rescind the contract without giving prior notice to Stephen as per the contract law In the case law of Bettini v Gye (1876) 1 QBD 183, it is was given that rescission involves the termination of a contract in a way that unravels it. It has the effect of treating a contract which did exist and may have been performed in part or full as having, with the benefit of hindsight, had no real or substantive existence.
Conclusion:
After assessing the cases and applicable law, it could be inferred that Michael cannot rescind the contract without giving prior notice to Stephen as per the contract law. If the contract is rescind then the Michael would be liable to bring the contract again into the existence. He is liable to perform the contract undertaken with the Stephen. However, in case, if after assessing the case, it was found that the there was a proper reply from the Michael and he gave proper reply to requisition then in this case, rescind of the contract by Michel would be authorised to rescind the contract. Nonetheless, in this case, it was clearly mentioned that Michel did not give proper reply to any of the requisition and Stephen consistently asked for the same. In this case, the case will be in the favour of the Stephen and he may ask for performance of the vendor purchase agreement by the Michael.
3. The Conveyance (Sale of Land) regulation 2017 gives protection to a purchaser by allowing the purchaser to cancel an exchanged contract if the purchaser discovers that there is any matter which will impact on the purchaser’s enjoyment of the property”.
In this statement the word ‘exchange’ means the representatives of seller prepare two identical contracts in which one is to be signed by seller and other to be signed by the purchaser. Exchange is the process where the contracts are swapped over or exchanged, dated and then each party holds the contract which is signed by the other. It is the situation when purchaser has a legally binding contract.
This regulation prescribes some remedies to the purchaser under part 5 of this regulation under which it the purchaser can rescind the contract. The purchaser can rescind the contract under clause 3 of the regulation if he is satisfied that:
This clause is for the protection of the purchaser form any fraudulent act or any undisclosed fact about the purchase of the land. The purchaser can rescind the contract by giving the notice in writing to the vendor. The purchaser can get refund which he has deposited if he has rescinds the contract. This rescission of contract does not render the vendor or purchaser liable to pay any damages, expenses or cost not even any reimbursement of the purchaser for any expenses incurred by the purchaser.
In the given case of Green v. Sommerville (1979) 141 CLR 594 at 609, it was given that the remedies were given to the purchase for the delay in the completion of the contract by the seller. If in case, seller fails to perform his action then the purchaser could ask for the specific performance to undertaken contract condition.
Here in this case, Molly has lived on her property on the riverfront at Grafton for 18 years. On the purchase of property she got to know that her neighbour has right of way down the side of the property to the river. In the time she was living she never seen anybody using the right of way and by the time that way was overgrown with trees, shrubs and weeds. Molly’s neighbour were living there for about 30 years and were disabled and uses wheelchair. Molly being a ceramic artist built a studio near the river which was partly across the right of way.
What is the right of way and when right of way expires?
What are the legal issues involved in the right of way between the parties?
In the present case the right of way was not in use for so many time but by this condition it cannot be extinguished by the owner. The non-use of the right of way does not expires the right over that path or property. The right of way can only be expires when it is abandoned. When the original character of the land of the dominant is changed to that extent that it is not possible or unnecessary to exercise the right of way. To extinguish the right of way it is necessary for both the parties who are dominant and servient to express it on a deed. Because once the right of way is extinguished it cannot be revived back.
In the given case of Benn V. Hardinge (1992) 60 P&CR 246, it was held by the parties to the dispute that right of way should be vanished if the right of way is not being used for over 175 years. However, court held that if the right of way is not being used for over 175 years then it is not enough condition to indicate an intention to abandon the right of way.
Conclusion:
So according to legal analysis and legislative assumption, Molly cannot extinguish the right of way of its neighbour on mere assumption that they were not using the right for so long time.
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