BLAW2009 Property Law For Business

Question 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.