7. Other interests in Land

Question 1

A parcel of land that is subject to an easement and benefits another parcel of land.

Answer 1

servient tenement

Question 2

right to use nearby land, but not possession.

Answer 2

easement

Question 3

Describe general easements.

Answer 3

1) different from profit -> only a right to use land in some way, not a right to take something from the land

2) most easements created by intention -> owner of servient tenement agrees to grant easement to owner of the dominant tenement

3) at common law -> every easement must have a dominant tenement -> many statutes now allow some types to exist w/o dominant tenements.

Question 4

A right to do something that interferes with possession or enjoyment of the servient tenement and would otherwise be trespass or nuisance.

Answer 4

Positive easements.

Question 5

Give examples of positive easements.

Answer 5

right of way to cross land, park cars, use a beach for swimming and recreation.

Question 6

Prevents owner of servient tenement from doing something they would normally be free to do such as a right to restrict use of nearby land

Answer 6

negative easements

Question 7

What are the requirements for a valid easement?

Answer 7

1. there must be a dominant and a servient tenement
2. an easement must accommodate the dominant tenement -> does so by providing a benefit, that must be connected to that land in some way, to enhance the use and enjoymnet of the dominant tenement
3. dominant and servient owners must be different persons
4. A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

Question 8

Which case is a prominent easement case?

Answer 8

Re Ellenborough Park (1955)
- people owning homes around the park had a valid easement to use for recreation.

• at issue was whether the easement was valid or not
• held it was valid but had a restrictive covenant as well that it could only be used for one purpose -> enjoyment

Question 9

Who bears cost to construct or maintain?

Answer 9

owner of dominant tenement entitled to enter servient tenement to make necessary repairs but not obliged to do so -> cost to maintain falls on dominant tenement

James v Pritchard 1908

Question 10

Example of difference between easement of licence.

Answer 10

Using someone else’s land can be either a license or an easement. For example, if I let you walk on a path across my property to reach a lake, it could be a license or an easement. It depends on whether I gave you a personal right to use the path (license) or if I allowed the right to extend to your land (easement).

Question 11

What happens when land is subdivided and a portion is transferred?

Answer 11

The transferor may create an easement.

One portion becomes the servient tenement and the other becomes the dominant tenement.

Transferor grants an easement if they retain the servient tenement -> the transferee acquires the dominant tenement plus an easement.

Transferor reserves an easement if they retain the dominant tenement.

Question 12

A promise made in a deed creating rights in personam.

Answer 12

A covenant.

Question 13

What is a restrictive covenant?

Answer 13

• restricts use of land and only enforced against subsequent landowners (unless they pose positive obligations)
• made between neighbour
• may be a property right

Question 14

Who is a covenant enforceable against?

Answer 14

Only against the person who made it

Question 15

Can covenants create right in rem?

Answer 15

some relating to land can create rights in rem which are enforceable against subsequent landowners.

Question 16

What is the difference between a positive covenant and a positive easement?

Answer 16

Positive covenant is the duty to do something like pay rent or repair while a positive easement is the right to do something like having the right of way.

Question 17

What were the 2 restrictive covenants in Re Ellenborough Park (1955)

Answer 17

1) to maintain the park as ornamental pleasure ground and not build on it

2) to use surrounding lots only for residential purposes.

Question 18

What is the difference between a negative covenant and a negative easement?

Answer 18

They aren’t really different. A negative covenant is a duty not to do something, such as not to use a lot for residence, while a negative easement is also a duty not to do something, such as a duty not to block windows.

Question 19

What case was the origin of restrictive covenant?

Answer 19

Tulk v Moxhay (1848)

• P owned Leicester Square and several houses around it.
• Sold square to a purchaser who made a covenant to P that they would keep and maintain the said piece or parcel of ground and square garden and the iron railing around the same in its present form + make sufficient repairs.

The purchaser tried to deviate from the covenants, so an injunction to stop the purchaser was granted because the land was acquired by the purchaser with knowledge of the covenant, so he was not allowed to violate it.

Question 20

What are positive covenants?

Answer 20

create an obligation to do something such as to repair or pay rent.

Question 21

Are positive obligations imposed on people at common law or in equity?

Answer 21

not imposed unless they agreed, did something wrong, or were unjustly enriched.

Question 22

Can obligations be imposed on a subsequent landowner?

Answer 22

Yes, if it restricts what they can do with their land but not if it compels them to do something positive such as spend money, make repairs, or perform maintenance.

Question 23

How is it determined if a covenant is a positive or negative one?

Answer 23

Depends on substance of what is required rather than form of the words.

e.g: covenant to maintain land as a garden implies a positive duty of maintenance, but can be enforced as a negative duty to not use land for other purposes

Question 24

Can a restrictive covenant exist without a dominant tenement?

Answer 24

No, there must be a dominant tenement because there must be some benefit to that land provided.

Question 25

What are the characteristics that covenants that run with the land must have?

Answer 25

as per Farwell J in Rogers v Hosegood:

1) must be made with a covenantee who has an interest in the land to which they refer.

2) they must concern or touch the land.. the covenant must either affect the land as regards mode occupation, or it must be such as per se, and not merely from collateral circumstances, affects the value of the land.