Easements and Covenants

Sydney Jacobs

[vc_row css_animation="" row_type="row" use_row_as_full_screen_section="no" type="full_width" angled_section="no" text_align="left" background_image_as_pattern="without_pattern"][vc_column][vc_column_text] Sydney Jacobs Sydney specialises in the areas of commercial equity, including real property, conveyancing, easements, covenants, strata, building and construction law, partnership disputes, insolvency, and leasing. He is also a NMAS accredited mediator, and a BarADR accredited arbitrator and an expert determiner. Complementing his practice as a barrister and mediator, Sydney authors two major loose-leaf services published by Thomson Reuters: Commercial Damages and Injunctions: Law & Practice; and part-authors two leading loose-leaf services, Commercial Arbitration: Law & Practice, and International Commercial Arbitration. Sydney is a frequent presenter at CPD Seminars, some of which are linked below. Prior to being called to the Bar, Sydney was a solicitor in the Construction Divisions of Minter Ellison Morris Fletcher (now Minter Ellison) and Deacon Graham & James (now Norton Rose Fulbright). To brief Sydney, please contact him on (02) 9232 7658 or via email: sjacobsassistant@13wentworth.com.au Sydney appears before the Supreme and Federal Courts, NCAT and has represented clients in the Industrial Relations Commission, Crime Commission and the Independent Commission Against Corruption as well as at technical references, arbitrations and mediations. Sydney’s experience in Easement matters includes: Acting as mediator. Applications to restrain servient owners from obstructing the use of an easement. Applications to be granted easements e.g. access/carriageway/services under Sec 88k of the Conveyancing Act NSW Applications for declaratory relief in respect of easement rights. Whether easements have become obsolete or have been abandoned (Sec 89 CA). Whether covenants have been overridden by planning instruments. Issues pertaining to both common law and Torrens title. Whether a legal practitioner has been negligent by not giving advice in the context of the purchase of land, that there was no easement securing the right of the purchaser to retain a particular utility in place. Whether there is an equitable easement, or easement by estoppel, to maintain in situ valuable signage and services. Construction of development consents which make provision for easements, including deferred commencement conditions. Comparing strategies under Sec 88k Conveyancing Act / Access to Neighbouring Land Act /Encroachment of Buildings Act. [/vc_column_text][vc_separator type="normal" color="#000000" up="30" down="30"][/vc_column][/vc_row][vc_row css_animation="" row_type="row" use_row_as_full_screen_section="no" type="full_width" angled_section="no" text_align="left" background_image_as_pattern="without_pattern"][vc_column][vc_column_text] Areas of Practice Appellate Building & Construction Law Commercial Law Corporations Law Easements and Covenants Equity & Trusts Inquests, Inquiries & Royal Commissions Intellectual Property Local Government, Planning & Environmental Law Mediation Mediators Real Property Law Retail and Commercial Leasing Trade Practices & Competition [/vc_column_text][vc_separator type="normal" color="#000000" up="30" down="30"][/vc_column][/vc_row][vc_row css_animation="" row_type="row" use_row_as_full_screen_section="no" type="full_width" angled_section="no" text_align="left" background_image_as_pattern="without_pattern"][vc_column][vc_column_text] Qualifications Accredited Mediator, National Mediation Accreditation System (NMAS), 2018 BarADR Approved Arbitrator & Expert Determiner, 2017 Higher Diploma in Company Law: University of Witwatersrand, South Africa, 1990 Master of Laws: University of Cambridge, UK, 1986 Bachelor of Laws: University of Cape Town, South Africa, 1984 Bachelor of Arts: University of Cape Town, South Africa, 1982 [/vc_column_text][vc_separator type="normal" color="#000000" up="30" down="30"][/vc_column][/vc_row][vc_row css_animation="" row_type="row" use_row_as_full_screen_section="no" type="full_width" angled_section="no" text_align="left" background_image_as_pattern="without_pattern"][vc_column][vc_column_text] Professional experience 1997 – Present:  Barrister, 13 Wentworth Chambers 1995 – 1997:       Senior Associate, Deacons Graham & James (now Norton Rose Fulbright) – Construction Department 1994 – 1995:       Solicitor, Levingstons – Commercial Litigation and Maritime Law Department 1991 – 1994:        Solicitor, Minter Ellison Morris Fletcher – Construction Department Academia Sydney is a former part-time lecturer on the topic of Damages and Equitable Remedies, as part of the Master of Laws Program at the University of Technology, Sydney[/vc_column_text][vc_separator type="normal" color="#000000" up="30" down="30"][/vc_column][/vc_row][vc_row css_animation="" row_type="row" use_row_as_full_screen_section="no" type="full_width" angled_section="no" text_align="left" background_image_as_pattern="without_pattern"][vc_column][vc_column_text] Membership NSW Bar Association Australian Bar Association Resolution Institute[/vc_column_text][vc_separator type="normal" color="#000000" up="30" down="30"][/vc_column][/vc_row][vc_row css_animation="" row_type="row" use_row_as_full_screen_section="no" type="full_width" angled_section="no" text_align="left" background_image_as_pattern="without_pattern"][vc_column][vc_column_text] Selected Cases [N.B. Easement/Covenant cases and advices are marked with **] Some of the matters in which Sydney has appeared or advised are as follows. Those which are unnamed are either current or were subject to settlement and hence limited details can be provided: 2022 NSW District Court Proceedings No. 2021/297944 – Alleged trespass by television crew and consequent alleged publication of material filmed whilst on premises. Claim for damages for loss of reputation [ongoing proceedings]. Easements and Covenants – various advices including:** (i)     Advising a developer whose land is burdened by an easement for carriageway as to what construction they can carry out on their land, having regard to the easement. (ii)   Advising as to whether there can be a passing bay on a right of carriageway. (iii) Considering whether there is an existing easement by virtue of adverse possession. Alternatively, whether an easement can be obtained under section 88K Conveyancing Act. (iv) Advising as to whether a servient owner in respect of a right of carriageway has obstructed use by placing objects etc. across it. (v)  Advising in a number of matters where the full width of the easement is not available for practical use and considering whether the servient owner can be compelled to provide wider access. (vi) Advising as to whether the overland flow of water constitutes an actionable nuisance and as to a notice of intention are to issue a Development Control Order in that regard. 2021 • NSW District Court Proceedings No. 2020/206191 – Mediation – Appointed as mediator in relation to professional negligence claim against mortgage broker etc. • NSW Supreme Court Equity Division, Real Property List Proceedings No. 2021/268328 – Application for a statutory easement under section 88K Conveyancing Act.** • NSW Supreme Court Equity Division Proceedings No. 2020/365402 – Ianni Family Pty Ltd v Bell and Dzubiel – Application for an easement under section 88K Conveyancing Act (NSW).** • NSW Supreme Court Proceedings No. 2020/44220 – Johnstons v Page –concerned whether an easement for right of way ought to be extinguished or amended.** • Land and Environment Court No. 2021/95074 – Korlevic and Ors v Tynan – Class 3 Proceedings, under the Encroachment of Buildings Act 1922, seeking an easement in respect of part of a building constructed on neighbouring land.** • NSW District Court Proceedings No. 2020/208291 – Alliance Motor Auctions Pty Limited v Friendlee Autos Pty Ltd & Lee William Friend – Action for monies owing by reason of sale of chattels. Defence based on estoppel. • G v L – Application to the Registrar General regarding the removal by him of an easement and seeking that he exercises his powers of review so that the easement may be reinstated (as the matter is not in the public domain, names of the parties are confidential).** • NSWSC Proceedings No. 2021/108534 – Di Maria v Di Maria – Application for appointment of a trustee for sale pursuant to Sec 66G Conveyancing Act. • NSW District Court Proceedings 2021/177896 – Claim for damages for trespass by crane swing; and associated application for an Access order under the Access to Neighbouring Land Act, in Local Court Proceedings 2021/159495. • NSWDC Proceedings 2021/135191 – Claim by builder for variations alternatively upon a quantum meruit/restitution for unjust enrichment. Easements and Covenants – various advices covering: ** (i) – the true construction of a covenant contained within an easement and whether the consent of the dominant owner can be capriciously withheld. (ii) Sec 88 K Conveyancing Act – whether easement reasonably necessary. (iii) Easement by long user / prescription & the differing principles relevant to Torrens and Old System / Common Law title. (iv) where dominant land consolidated with other land • NSWSC Proceedings No. 2020/321959 - Mediator – mediate multi-party dispute concerning an easement for carriage way, benefiting commercial premises. ** • NSWSC Proceedings No. 2020/44220 – ongoing matter as to whether a right of way ought be extinguished under Sec 89 Conveyancing Act. ** • Advice as to construction of easements for jetty access. ** • Settle application in NSWSC for easement for encroachment. ** • Advise developer about easement for passing bay. ** • Advice as to construction of a right of way allowing gates to be constructed. ** 2020 • Development of new suburb in a capital city: advise developer as to the true construction of development consents stipulating for the provision of easements. ** • DCNSW Proceedings 2020/208291 – Dispute as to whether moneys owing for sale of certain chattels; defence based on estoppel. • Proceedings in the SC of NSW and the ACT: Appeared at mediation of a NSW Supreme Court dispute between partners involved in a construction company; drafted pleadings that one party had become the agent for sale of the shares of the other, owed fiduciary duties and breached them. Claim by one party to an equitable interest in a property purchased by the other and used in the business - Successfully mediated before final hearing. • NSWSC proceedings [No. 2019/316427] against a director of a company in liquidation. Settled pleadings and affidavits as to breaches of director’s duties including uncommercial transactions – successfully mediated before final hearing. • Submissions to the Registrar General on behalf of dominant owner of property, which benefited from an easement for access over neighbour; Successfully opposing an application for removal of the easement by reason of abandonment. Neighbours / servient owner made administrative application that the easement be removed from the register on the basis of obsolescence/abandonment. ** Easements and Covenants – various advices covering: ** (i)   Whether the owners of the servient land, over which there was an easement in gross for drainage of water, were entitled to develop their land above that drainage easement and if so, at what height. (ii)  Advice as to the true construction of an easement for access benefitting substantial rural property. ** (iii) Advice on whether an easement for access to a substantial estate could be removed on Sec 89 Conveyancing Act grounds e.g. obsolescence. ** (iv) Draft pleadings in a NSWSC claiming that there is an easement by estoppel in respect of substantial adjoining properties, alternatively, a claim for an easement for carriageway pursuant to Sec 88 K Conveyancing Act. ** (v) Advise owner of servient property, over which runs an easement for access, canvassing whether the easement could be removed pursuant to Sec 89 Conveyancing Act by reason of abandonment; and if not, what rights the dominant and servient owners enjoy e.g. as to re-forming its surface; its daily use and what would constitute actionable interference/ nuisance. ** (vi) Advise owners of a shopping centre, in circumstances where an easement benefitting the land is to be resumed. ** Prior to 2020 • Turvey v Crotti (No. 2) [2019] NSWSC 399 – As lead counsel for Turvey- Costs – Costs on an indemnity basis – whether case unduly prolonged by groundless contentions – offers of compromise – whether maximum sum of costs should be specified. – Successful – Significant Costs ordered. ** • Maphaven Pty Ltd Pty Ltd v The Owners –Strata Plan No 48887 [2019] NSWNCAT – Strata schemes – strata levies – what is the obligation (if any) of a lot holder to make contribution to insurance premiums over and above ordinary levies – change to the use of the leased premises (carpet shop to bespoke tattoo artist) – what impact (if any) did this have on insurance premiums of the strata schemes ? – meaning of consent in Sec 82 (2) Strata Schemes Management Act 2015 – Orders made under Sec 241 of the SSMA –costs awarded to applicant – no part of the costs incurred by the respondent to be levied against the Applicant. • Australian Commercial Marketing v Gold [2018] NSWSC 1701 – Land Law – Occupation of commercial premises – lease / licence – option in licence exercised orally for part of premises, so as to allow the Defendant to remain for a further three years; and other related issues including severance of part of agreement relating to determining rental in the option period that is void for vagueness. • S v A [2018] – Ex Parte Freezing order for close to $900,000 for real estate agent’s commission. • Turvey v Crotti [2018] NSWSC 1959 – As lead counsel for Turvey-Easements – for right of way – old system sub-division – nuisance – defendant obstructed the plaintiff’s ability to excercise the right of way over an access road appurtenant to her property. There was a subdivision of a large estate in the 1800s where the transfers to the original purchasers included the rights to pass and repass on the roads shown in the original plan of subdivision. At least one of these easements was omitted to be registered in a transfer in the 1900s where the land was qualified title, and the Registrar General then used his powers under s 42 Real Property Act 1900 (NSW) to register the...