S184G CA: priority given to the earlier same as s 12 of the former Registration and Deeds Act. If the four elements are satisfied, namely: 1. Instrument relating to the land (excludes wills) must be effective and not void 2. Made in good faith a. There must be no fraud – Re Cooper b. It must be bona fide – Marsden v Campbell c. Notice only effective after registration, no notice before registration, but after settlement – Scholes d. Knowledge before registration is irrelevant – Burrows e.
Scholes can be avoided if settlement takes place after registration and what is registered is not a transfer, but a contract for the sale of land – Moonking 3. With valuable consideration 4. Registered under this section or Registration and Deeds Act as an instrument. Must be created by instrument Priority is given to the first person registered. There is no indefeasibility in Old System. S184G Cases Darbyshire- if a person has a registered equitable interest then this gives rise to a legal interest.
Priority is given to the first registered interest, the second registration is irrelevant Types of Estates in Old System Legal estate in fee simple: •Purchaser receives a legal interest at settlement when they get a conveyance by deed. The estate passes from the vendor to the purchaser. •A first mortgage by deed at settlement, where the vendor delivers •The legal estate may only vest with 3 parties: oVendor before settlement oPurchaser post settlement (who may be subject to).
oFirst mortgage post-settlement •Interests may also be non-legal in nature, such as those from statute: •Deeds of easement •Deeds of Lease •Lease that complies with s23D CA oImmediate right to possession oLess that 3 years in duration oObtained for the best rent possible Equitable Interests •Purchaser has a legal interest prior to exchange of contracts, from then on, it becomes a legal interest •Beneficiary under a trust •Mortgagor’s equity of redemption.
oRight for borrower upon repayment of debt in full to get a reconveyance from the mortgagee oMortgage debt: interest on principle and the principle with any resulting legal costs oLimited by time, usually specified in the contract within the common law ‘expected’ time frame oEquity of redemption = contractual right to redeem + common law right to redeem (Kreglinger v New Patagonia Meats) oThe equity of redemption expires once foreclosure occurs (Kreglinger v New Patagonia Meats) •Mortgages other than a first mortgage by deed, such as an equitable interest from the deposit of title deeds as in Cooney v Burns •Agreements to grant mortgage promised by the owners of the bank (ANZ v Widdin) •2nd and 3rd mortgages – these are only equitable interests, only the first mortgage is a legal interest •Leases in writing which do not satisfy the requirements of s23D CA Qualified Title.
Transferring stage between Old System and Torrens Title. It is Torrens with qualifications, i. e. Torrens subject to Old System: title subsisting interests – enforceable. Lasts from 6-12 years. If in the first 6 years of qualified title the where: •There is a dealing •For valuable consideration •There has been no fraud The caution is still valid up until the 6th anniversary of the recording of the caution. Where there are no further dealings in the next 7 years, so 12 years after the initial recording of the caution, it lapses on the 12th anniversary. Where there has been a dealing, the caution will lapse at the time of dealing Real Property Act.
s28J: cautions recorded on the register warn regarding any land warning persons dealing with the registered proprietor that the land comprised therein is held subject to any subsisting interest, whether recorded therein or not. Registrar General has the ability to amend the Register to include these cautions s28M: when a caution ‘lapses’ the transition from Old System into Torrens Title is completed and Qualified Title lapses. The caution may lapse either 6 years from date of record on the folio or when the person becomes/is deemed to become registered (the latter of these) Mortgages Equity of redemption: refers to the mortgagee’s right to get a reconveyance after all outstanding debts are paid off.
The equity lapses where foreclosure has occurred and is equal to the contractual period (this is the loan term iff there is no breach of contract) + equitable period Process of foreclosure: a process where the first mortgagee assumes ownership of the property 1. There must be a default in the mortgage a. At this stage the mortgagee 2. Mortgagee must give notice of default requiring remedy within one month of default pursuant to s57 RPA or s111 CA 3. The mortgagor fails to comply with the notice, i. e. there is non-compliance a. At this stage the mortgagee may exercise a mortgagee sale, which is the preferred thing in Australia. The mortgagee has discretion to determine when to sell i. Old System mortgage/Unregistered Torrens: s111 CA ii.
Torrens Title and Registered mortgage: s57 (2)(b) RPA 4. A properly conducted auction takes place a. S99A and 100 CA b. Ss61 and 62 RPA 5. The highest bid must be less than the debt (interest + accrued principle). In other words the property must have been passed over at auction as the reserve price (equal to the debt) has not been met a. Where the highest bidder < debt, the mortgagee may sue the mortgagor in debt b. The right to sue is still there when the bank becomes the owner of the property, i. e. forecloses 6. Apply for foreclosure 7. Further period of six months – at the discretion of the court 8. Order for foreclosure issued by the court Mortgages and Tacking
Tacking: where a first mortgage makes further advances based on the principle amount lent, i. e. a mortgage is created and then the mortgage borrows an extra amount, which is added on top. Rules of Tacking – Old System Title: •Tacking tabula in naufragio refers a process of tacking where there are three mortgagees. The 3rd mortgagee assumes the position of the 1st mortgagee where they take their assignment with no notice of the 2nd mortgagee. Hence in a priority dispute the 3rd mortgagee will prevail over the 2nd mortgagee because the 1st and 3rd are the same (the 3rd mortgage is an advancement) – Taylor •If the 1st mortgagee’s advancement was made with notice – actual, constructed or imputed – of the 2nd mortgagee.
If there was, then the 1st mortgagee will be bound to the 2nd mortgagee even where advancements have been provided for in the contract – Hopkinson, West •If before the first advance steps have been taken to provide for future advances and there is an obligation to lend more money, the 2nd mortgagee only prevails where the 1st mortgagee has actual notice of the 2nd mortgagee only when they are making the second advance – O’Byrne •Where there is no provision for further advances, the 2nd mortgagee prevails over the 1st mortagee where there is actual or constructive notice. The key factor is whether or not there was an intention to make further advances – yes – Then O’Byrne applies. No – then the 2nd mortgagee prevails – Potter Tacking – Torrens Title Position.
•The old system rules to tacking apply to Torrens Title as well, unless it would create an outcome ‘against conscience’ – Matzner •The Matzner Exception: if the 2nd mortgagee was to receive nothing but for the 1st mortgagee’s further advancement, then in equity, this exception arises hence the 1st mortgagee will prevail over the second mortgagee in this instance •Unless there is actual notice of the advancement, the 1st mortgagee will prevail over the 2nd mortgagee – Central Mortgage Registry, Westpac Penalties •S93 CA:
Mortgage may be paid off early regardless, where the privilege/price of paying it off early is that you must pay off the interest accruable over the life of the loan so far effective immediately oFor the most part, this section has been stamped out of most conventional mortgage contracts oIf there is a provision in the contract allowing for early payment then you only have to pay interest up until the time of redemption which is determined to be when notice is given •Penalty clauses are unenforceable in equity because by their very nature they go against conscience.
They become void and unenforceable – Strode •If a mortgagee causes the acceleration then it will be deemed to be a penalty clause hence void> to determine this look to see whether a quantum of loss – if there was then this is more likely to not be a penalty clause as there has been actual loss •Where the mortgagee instigates the action, they are not entitled to the principle and interest up until the point of default. However, if the mortgagor triggered the action, then they would have to pay the total value of the loan (principle + interest) – Caruana •Where the financier (equivalent to the mortgagee) seizes the goods they are only entitled to the lease payments upon time of demand. Hence Caruana is applicable – O’Day Mortgage Remedies •Foreclosure: mortagee becomes owner in exchange for debt •Personal covenant: personal type of contract •S60 RPA: mortgagee can request court order for repossession •S100 CA: the bank (mortgagee) may appoint a receiver to collect rent.
This allows the bank to bypass the mortgagor to collect rent on their behalf to contribute to the loan repayments •The mortgagor is entitled to claim the value of monies spent to improve the property in a reasonable way – Matzner •Mortgagee Sale; 3 main elements oThe mortgagor defaults oNotice of default is given within one month under either •S57(2)(b) RPA: if it is a registered Torrens Mortgage •S111 CA: Unregistered Torrens and Old System mortgage oThe mortgagor fails to comply with the notice •S58 RPA, s112 CA: the chain of payment is as follows where there has been a mortgagee sale: oLawyer for mortgagee oRepayments of first and subsequent mortgagees oLeftovers goes to the mortgagor •Requirements for a mortgagee sale oThe mortgagee cannot sell to themselves, the sale must be to a real or corporate person for the best possible price –.
Farrar oThe mortgagee cannot sell to a related purchase or a company in which the mortgagee Is a major stockholder; distance must be ‘at arms length’ – Bangadilly oThe propriety of the sale is to be judged on the day it was sold. The mortgagee has the final decision on when and whether to sell – Belton oMortgagor has the ability to either sells themselves or request an earlier payment because the mortgagee was to be repaid in fully regardless – Palk •2 obligations on mortgagee when selling: oDuty to act in good faith/bona fide •Must not act recklessly •Must not satisfy the interests of the mortgagee •Duty to obtain the best possible price or the market price – Cuckmere •Must not be acting in bad faith – Bourke.
•Mortgages are not covered by the tortious actions of negligence based on duty of care – Cuckmere •The duty to act in good faith is less onerous in nature than the conventional tort duty of care – Forsynth •A duty of good faith is only imposed where the dealing is at an arm’s length •If the sale is not at arm’s length then there is also a duty to obtain the best price possible oTo take reasonable steps to obtain the proper price •Stopping a mortgagee sale: oCan only occur before the sale is completed: •Payment of the full value of the debt and all interest payable in court – Inglis v Cth •An out of court interim order may be requested to stop the sale pending a final hearing – Brutan, Harvey oWhen C/S has occurred but before settlement:
•Mortgagor may go to the Duty Judge and allege improper sale has occurred •Evidence required to show that there has been an improper sale •If the property is sold for more than the value of the full debt owing, an injunction will be granted and the court must determine the exact nature of the duty owed – Allfox •Judges must do justice to the parties, an equitable outcome must be achieved •Issue: does the mortgagee have the right to sell? If not, interim injunction more likely to be granted •Injunctions are not available with respect to innocent third parties – Latec oAfter settlement: only damages are available for an improper sale Co-ownership Relationship between law and equity.
•In Torrens Title: unregistrable equitable interests exist when it comes to Priority Disputes due to the obligations created through conduct. These cannot be ignored – Barry v Heider •The area of mortgage law: arises due to the obligation the mortgagor has to repay the mortgagee back for the loan oEquity of redemption Co-ownership: where there are more that 2 proprietors simultaneously owning the same piece of land or chattel. Exists as either a joint tenancy or tenancy in common It is possible to be a joint tenant in law as a registered mortgagor and a tenant in common under equity Joint Tenancy 4 unities are required for a Joint Tenancy: 1. Possession 2.
Interest must of the same nature for all joint tenants 3. The title must be derived from the same instrument – transfer/mortgage/will 4. Time: interests must be created at the same time Characteristics of a Joint Tenancy – LEGAL INTEREST 1. Aliquot (divided) shares: each joint tenants share is not realised until the joint tenancy has ended – the share is ‘potential’ in nature until severance occurs 2. Right of survivorship – jus accrescendi – where one joint tenant dies the interests of all of the other joint tenants are enlarged in equal proportions and the deceased’s interest is shared in equal proportions a. The right of survivorship supersedes a will b.
Joint tenancies cannot be left in a will c. Once there are no more joint tenants the person becomes the sole owner and transfer via will is possible S35 RPA: where death of all joint tenants occur, presumption codified in statute that the oldest dies first and then this continues until the youngest is the sole surviving owner Creation of co-ownership at law: There is a presumption of a joint tenancy at law unless: 1. One of the four unities is not present, they are: a. Possession b. The interests in the land were derived from the same instrument c. Interests must be created at the same time d. Title must be derived from the same instrument 2.
There are words of severance, i. e.the shares are divided unequally 3. There is contrary evidence to suggest that there was no intention to form a co-ownership>look to the facts and circumstances There is a statutory presumption of a tenancy in common in equity 1. S26(1) CA: there is a presumption that you are a tenant in common unless you indicate you are not a tenant in common a. Where there are facts, circumstances and intention to suggest that there is a tenancy in common as s26(1) has been satisfied then the court will rule that one does exist – Delahunt 2. S26(2) CA: if you say you are a joint tenant then you are, but you may still be subject to a tenancy in common hence s26(1) does not apply 3.
S100(1) RPA: two or more persons registered as joint tenants are joint tenants in law. Joint tenants are joint proprietors. Equity will follow the law unless there is an exception Characteristics of a Tenancy in Common – EQUITABLE INTEREST 1. Only the unity of Possession is required 2. May be divided in unequal shares 3. The shares may be identified separately but possession still occurs as a whole 4. There is no right of survivorship 5. Other characteristics: a. Partnerships are inherently equitable, hence they are likely to be classified as tenancies in common for the alienability Doctrine of Conversion 1. Where application of equity results in a different outcome from the common law a.
The gap is bridged by trusts b. Leads to different outcomes in real property 2. Interests may be held simultaneously in common law and in equity 3. Equity is engrafted onto law, it is not carved of law 4. Equity engrafts limits onto the rights and interests of the legal owner 5. Equity adds additional obligations on top of law 6. In real property equity will always prevail because it limits contract Severance of Joint Tenancy Severance cause the joint tenancy to be converted into a tenancy in common 1. Transfer: once a one joint tenant transfers their interest to another joint tenant, the joint tenancy is severed a. A. B and C example: b. C transfers to D i.
Joint tenancy between A and B still exists (equal ? shares) ii. Tenancy in common between A, B and D 1. 2/3 share to A and B, meaning 1/3 share individually 2. D has 1/3 share c. D dies and E is the inheritor of the estate in the will i. 1/3 share of tenancy in common passes to E through the will ii. B then dies 1. A becomes the sole owner and the joint tenancy is extinguished 2. Destruction of one of the 3 unities – NOT POSSESSION NEEDED FOR BOTH May be voluntary or involuntary done a. Unilateral act i. A cross transfer will be sufficient to sever joint tenancy through alienation – Wright v Gibbons ii. S97 RPA: you can transfer to yourself to sever the joint tenancy 1.
If there is no severance at law due to lateness then there is no severance in equity* 2. If severance in equity occurs, a series of trusts are established and they would be tenants in common and hold on trust for each other* 3. Cannot use equity to own both equitable and common law estate* *McCoy v Caelli iii. Alienation achieved under 1. S38 CA: Old System land – alienation through conveyance by deed 2. Torrens title: a. Registration to sever – Corrin v Paton b. Document which satisfies s23C CA] 3. Equity – Corrin v Paton a. A contract with valuable consideration exists b. There has been part performance c. Is the property a gift? b. Course of dealing i. Very hard to prove – high evidentiary burden ii.
If all joint tenants did sufficient acts to give rise to an intention to be tenants in common then this is enough to sever the joint tenancy iii. Interests become equitable c. Mutual agreement i. There must be no issue with consent – must be absolute agreement ii. Severance occurs in equity only as nothing has change in registration iii. It must be in writing iv. Once the transfer is signed but before registration than severance has occurred in equity v. Change in registration is the only way to give effect to severance at law d. Court order: this may be done to reapportion the interests and sever the joint tenancy i. Common in divorce ii. This is the destruction of the tenancy itself, not of 1 of the 4 unities e.
Unlawful killing: i. Equity prevents you from profiting from the crime ii. S5 Forfeiture Act: joint tenancy is severed by the reapportionment of interest with respect to the tenancy in common which results in the creation of a constructive trust. It is the constructive trust that severs f. Bankruptcy: s8 Bankruptcy Act – property interests vest in the trustee in bankruptcy – this destroys the 4 unities effective from the moment in time where the bankruptcy is declared Ending of co-ownership: occurs either through parties’ conduct or court order •Conduct: oOne party acquires the shares of the others and extinguishes the right of survivorship oPartition.
•Physical division of the land – tenancy ended because there is no unity of possession •Rarely used •Sale of the land is preferred: property is vested in the trustee to seel on your behalf •Court order oS66G CA: if >50% of the owners want a sale, the court will go with this. The court will declare an investigation into the circumstances, hardship is irrelevant Rights inter-se during co-ownership The rights are the same under both forms of co-ownership •No one has the right to request rent from the other parties •Right to possession of the whole exists, even if one party leaves oAllows you to bind your share •Subletting •Cannot change the rights of the other co-owners •Exceptions – when rent is payable.
oAgreement: where there are two co-owners and there is mutual agreement that one party is to pay rent for sole possession – voluntary •One party cannot request the other party to pay rent oOuster: where one partner takes action to unlawfully exclude a co-owner from the property, effectively destroying the unity of possession •Here, rent is payable as occupation rent which is market value/number of co-owners •There is no need under common law to share rent with other con-owners •Equity will compel the co-owner to share with their peers – Hutchinson, Dries Steps taken at the end of co-ownership: •Accounting by the co-owners takes place oTaken by the NSWSC – Equity Division.
oExamination of things done to the property oPerson who has made the improvement is allowed to an allowance •Allowance is based on the lesser between: •The cost of the improvement at the date done •The market value of the improvement •Improvements are actions taken which improve the value of the property. They do not include maintenance •Mortgage repayments are improvements because they reduce the debt, hence increase the value of the property – Ryan v Dries •Service charges such as rates are not improvements but are merely maintenance – Ryan v Dries o In certain cases there may be an obligation to pay profits •If the profit was generated from the property itself, e. g.as a caravan park on behalf of the co-ownership then the profits must be shared – Squire v Rogers •If the profit was generated from the provision of personal services which are independent of the land, then there is no need to share with the other co-owners.
Squire v Rogers •The quantum awarded for profits may be reduced by an allowance for the initial outlay – Squire v Rogers •If the value of improvements > profits – the co-owner claiming would actually have to pay the other co-owners the difference Maxims of Equity 1. Equity follows the law, unless: a. There is an unequal contribution to purchase price b. Money has been advanced on a mortgage – Matzner i. Where one person dies, mortgage repayments go to the sole owner 1. Estate may recoup initial outlay due to tenancy in common’s existence c. There are partnership assets 2. Equity treats as done what ought to have been done 3. Equity will not assist a volunteer Easements Also known as freehold covenants.
Easement: a right (which does not confer exclusive possession) either: •Annexed to the land to utilise the land of another in a particular manner •To prevent another using his or her land in a particular manner Comparison of easements and various other rights Licences and easements: •Licences are immediately revocable whereas easements are not as they are usually registered •Both allow you access to the land of another •Licences are less than contractual rights whereas easements are property rights – greater remedies available •If there is a contractual licence, an issue of privity arises Leases and easements: easements do not confer exclusive possession, whereas leases do Types of easements: •Easements may either be positive or negative:
oPositive: allows you to positively do something – generally manifest as a right of entry such as those between two battle-axe blocks of land •Categories of positive easements are always expanding – Easton oNegative: prevents you from using the land in a certain way, e. g. prevents the establishment of a right of entry. Categories of negative easements are limited to these 5 standard types: •Right to receive light for a building •Right to receive water through pipes •Right to receive air through defined channels •Right to receive support for a building, e. g. common walls in terrace housing •Profit a prendre: right to go onto someone’s land and take something away, e. g. right of warrenry (rabbits). Easement by gross, i. e. there is no Servient tenement oMust be naturally occurring, like rabbits.
oExtra form of extinguishment – when the resource has been fully exploited oRegistration occurs as per an express easement •Easements of support – s177 CA there is a breach of a duty of care of support is taken away from a piece of land, developed from common law based on Fee Simple land ownership •Old system easement: it will be valid if it satisfies s23D CA, namely: oThe best rent possible is paid oThe term must not be for more than 3 years •Easement in equity – exists where: oThe instrument has an inherent defect oBut for the defect the instrument is registrable oThere is a contract specifically enforceable •Easement of common intention: a form of reservation or grant •Wheeldon v Burrows easement:
oThere has been a severance of grantors land through subdivision oThe exercise of the easement must be: •Continuous or apparent •Present in time at point of severance •Capable of discovery on reasonable inspection •Necessary for the reasonable use of the land benefitted •The easement must be capable of being intended and computed •Implied grant or reservation: oS67 CA: in some situations implied easements may be created, where: •The land is Old System •Both lots affected by the easement must be under separate ownership oEasements of necessity (implied): •There must severance •It must be absolutely necessary for the enjoyment of the land •Easements by prescription oRelates to the fiction of the lost modern grant.
oAn easement is created where you have been using land for at least 20 years without permission oIt is not rebuttable •Dabbs v Seaman exception as implied easement– can only work with this set of facts on Torrens land oEasement formed from the description of the land oIf in a transfer of land there is a description of the land at the time of sale being: •Bounded by a road •Abutting the road oThe road and the lot next to the land are owned by the same person oDescription is by word or by diagram Parties to an easement •Dominant tenement: the party enjoying the benefit from the easement – the party relying on the easement •Servient tenement: the party whose land bears the burden from the easement.
4 elements of an easement – Re Ellenborough Park – only to be discussed where there is a new and novel easement 1. There must be a dominant and Servient tenement a. Easements in gross: where there is no dominant tenement. i. S88(1)(a) CA: statutory easement ii. Applies where there is a crown road and a public utility provider 2. Easement must accommodate/benefit the dominant tenement a. Does the easement facilitate the better enjoyment of the land? i. May be physically separate b. Where there is subdivision, the re is a presumption that the easement benefits all the subdivisions – Gallagher v Rainbows c. Facts and circumstances approach i. Does it improve the nature of the land? ii. Must be more than the mere benefit for the owner 3.
The dominant and Servient tenement must not be held and occupied by the same person a. Leasing out of the Servient tenement allows easement to be created despite one owner i. Must be a long term lease ii. Easement exists for the duration of the lease iii. S47(7) RPA: there is no automatic extinction of easement once there is a common owner 4. The right must be capable of forming the subject matter of a grant a. Must not be too vague, must be capable of precision b. The right to a recreational purpose is an easement – Re Ellenborough Park c. Easement will be reasonably precise if – Re Ellenborough Park i. It is defined for a given number of houses ii.
It is defined for a definite area iii. It is for a defined sense of community enjoyment iv. If the easement goes too far and renders ownership pointless, then there will be no easement as this contradicts the fundamental principles of fee simple ownership – Easton If (2) and (4) are not satisfied, then easement will not be sufficiently annexed to the land and, hence it will not be a valid easement. The easements must affect the nature of the land, not the mere convenience of the tenement – Easton Creation of an easement 1. Approved plan of subdivision under s88B and s88K RPA a. S88B RPA: for a valid easement to have been formed i. Applies to both old system and Torrens ii.
Under this section once approval comes through for a subdivision this section requires the registration of the building plans, which would then automatically create the easements iii. It must satisfy the following requirements 1. The dominant and Servient tenements must be clearly identified b. S88K RPA: court will grant an easement where the Servient tenement refuses to burdened if: i. The use of the dominant tenement is not contrary to public interest ii. Easement must be reasonably necessary for the effective use of the dominant tenement> lower standard of proof iii. The owner of the Servient tenement may be compensated iv. All reasonable agreement is not possible 1. Various subsections: a.
S88k(3): there are limits on the operation of the easement>provides for flexibility b. S88k(4): allows courts to make an order for compensation c. S42(1)(a)(1) RPA: omitted or misdescribed easements which are not recorded on the register but existing immediately before registration are deemed to be enforceable as omitted easements i. Omitted easements and easements by prescription are covered by this section – Gehl 2. Express grant a. Through registration under ss 46 and 47 RPA 3. Implied grant or reservation: ss46 and 47 do not apply due to the fictitious nature of the grant for implied easements a. Reservation: where you hold something back i.
Specified in the contract of sale to protect a right of way oSame formalities as an express easement > s88(1) RPA oImplied grant or reservation: oS67 CA: in some situations implied easements may be created, where: •The land is Old System •Both lots affected by the easement must be under separate ownership oEasements of necessity (implied): •There must severance •It must be absolutely necessary for the enjoyment of the land •Easements by prescription oRelates to the fiction of the lost modern grant oAn easement is created where you have been using land for at least 20 years without permission oIt is not rebuttable 4. Statute: under Torrens, for a valid easement to exist it must be created under ss46 and 47 RPA a.
S46: the easement must be recorded on the memorandum of transfer b. S47: the memorandum of transfer must be registered Easements last as long as the Servient tenement still exists, there is automatic extinguishment should the Servient tenement cease to exist The ‘in personam’ exception: where infeasibility fails Test: what the conduct is and what the conduct of the dominant tenement holder was and does it give rise to an equitable exception? 1. If there is an unregistered express easement, best thing to do would be to get it registered 2. If it is an unregistrable interest, i. e. an implied or omitted easement, then go to the priority disputes Operation of the in personam exception:
•Prescriptive easements in NSW cannot be protected by this exception – Williams v STA •Wheeldon v Burrow type easements: may potentially be covered under the exception iff: oAfter being sold off, the Servient tenement still strongly intended to be bound by the easement oLook to see whether there is conduct to give rise to the exception •Implied intention not enough •There must be ACTUAL intention •Dabbs v Seaman exception as implied easement– can only work with this set of facts on Torrens land oEasement formed from the description of