4.5 Proprietary Rights

Question 1

What is an easement?

Answer 1

A right which benefits one piece of land which is exercised over land owned by another

Question 2

The nature of an easement can be

Answer 2

Positive and negative

Question 3

A positive easement allows

Answer 3

Allows the owner of the dominant land to exercise a right over the servient land

Question 4

A negative easement

Answer 4

one which limits what the owner of the servient land can do
obligation to not do something

Question 5

What does Re Ellenborough Park signify

Answer 5

the criteria which sets out if an easement can be met

Question 6

What is the criteria for an easement in Re Ellenborough Park

Answer 6

• must be a dominant tenement and servient
  o the easement must accommodate the dominant tenement
  o both pieces of land must be in separate ownership, and
  o the right must be capable of reasonably exact description.

Note the difference between a personal right ie a right to take photographs on a piece of land does not benefit the land

Question 7

How is an easement created

Answer 7

o by express grant reservation
o by implication, such as necessity
o under the rule in Wheeldon v Burrows (1879) 12 Ch D 31 (grant only)
o under LPA 1925 s 62, and
o by prescription (long use over 20 years).

Question 8

Wheeldon v Burrows (1879)

Answer 8

Easement will be granted by implication if it can be shown that it is
- continuous and apparent
- necessary for the reasonable enjoyment of the property
- in use at the date of the transfer

Question 9

Easement by prescription

Answer 9

the user must be for at least
20 years and must be as of right, which means without
force, without secrecy and without permission.

Question 10

How do you determine if an easement is legal or equitable?

Answer 10

By looking at the document which created it

Question 11

To be an express legal easement it must be

Answer 11

• it must be created by deed
• it must be granted for a period “equivalent to a fee simple absolute in possession or a term
  of years absolute”; this means that the easement must last for a fixed period or be forever,
  and
• it must be registered at HM Land Registry.

If the requirements are not met, equity can step in

Question 12

Equitable easement is registered as

Answer 12

notice on the charges register

Question 13

in unregistered land, an equitable easement must be registered as

Answer 13

D(iii) land charge to
bind purchasers for value

Question 14

Extinguishment means

Answer 14

Bringing an easement to an end

Question 15

Criteria for abandonment of an easement

Answer 15

This means that the easement must not have been used or exercised for many years and there
must be an act demonstrating an intention to abandon the easement.

Question 16

What is a covenant

Answer 16

A covenant is a promise to do or not to do something which must usually be contained in a deed.

Question 17

Covenants can be

Answer 17

Restrictive or positive in nature

Question 18

Positive covenant requires a

Answer 18

Positive act to comply with it

Question 19

Negative covenant requires a

Answer 19

negative act to comply with it ie. not to use the property as anything other than a private dwelling

Question 20

An easement can be

Answer 20

Legal or equitable

Question 21

A covenant will always be enforceable between the original parties due to

Answer 21

Privity of contract

Question 22

The burden of a (restrictive) covenant will pass in equity provided that the requirements of
Tulk v Moxhay [1843-60] All ER Rep 9 are met:

Answer 22

• the original parties intended the burden to pass, and
• the covenant has been registered on the charges register or as a D(ii) land charge.
• the covenant is negative in substance
• the covenant must accommodate the benefitting tenement

Question 23

A legal mortgage can be enforced through:

Answer 23

• debt action
  o foreclosure (taking ownership of the asset)
  o appointing a receiver
  o right to take possession, and
  o power of sale.