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BLAW2009 Property Law For Business

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  • Course Code: BLAW2009
  • University: Curtin University
  • Country: Australia

Question:

1

On alternate Saturdays each month, William and Kate make part of the bottom field of their farm, ‘Cambridge WK’, available as a market where local residents and businesses can hire stalls to sell their products.

The relevant hire agreement provided to the abovementioned residents and businesses, and signed by all parties, contains the following clauses:

Hire Agreement between Cambridge WK (WK) and the Hirer

Terms of Agreement

  1. The Hirer is entitled to exclusive occupation and use of stall number(s) [A1 and A2] for the period of one year from the date of this Hire Agreement. (A diagram is attached showing the number and location of each stall).
  2. If the Hirer does not use any of the stalls for a particular day or month, then WK may allow other persons to use those stalls.
  3. The Hirer must pay rental to WK before the end of each month. The rental payable is calculated by the number of stalls actually used during each month.
  4. The Hirer must keep the stalls in good repair and sanitary order. WK may enter and inspect the stalls at any time.
  5. Either party may terminate this Hire Agreement at any time by giving one month’s notice in writing. However, WK may terminate without notice if the hirer fails to pay rental, fails to repair any damage to the stalls or otherwise misbehaves.

2

Peter is the registered proprietor of 20 hectares of land in the Margaret River region of Western Australia. For many years he planned to develop the land into an exclusive residential complex. In 2012, Peter completed “Vintage Estate”, a cluster of 20 luxury homes dotted around a large artificial lake. Twelve homes have been sold and the others retained by Peter and leased to stressed mining executives. All owners of homes in “Vintage Estate” are entitled to private recreational rights over the lake, including access by boat ramps from each of the properties to the lake. Peter owns the land on which the lake is situated and maintains it.

In 2019, Peter decided to retire to the Tuscany region of Italy and sell his interest in “Vintage Estate”, and the land on which the lake is situated, to Andrews Pty Ltd (Andrews). Even though the sale has not yet been completed and its interest registered, Andrews is concerned about maintenance and insurance costs associated with the lake and plans to prohibit residents from using the lake for recreational purposes.

The owners of the homes claim their rights over the lake are in the nature of an easement.

Andrews claims the rights do not satisfy the four elements required to establish an easement.

Using the four-step process, explain whether or not the owners of the townhouses will be able to retain their rights to use the recreational facilities over the lake.

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