Core land law Flashcards
what is an easement?
right to use land belonging to someone else in some way
enforceable against third parties and the owner of the burdened land and subsequent owners of the burdened land
what are the requirements for an easement? (8)
requirements for an easement
- fixed duration (to be a legal easement)
- dominant land benefitted and servient land burdened
- benefits the DT (adds to its value) not just the DT owner personally
- easement is exactly described and one of the recognised categories (right of way, drainage, service media, support, use land for recreational purposes)
+ validly acquired
must not be prevented from being an easement
- must not amount to exclusive possession so as to prevent the ST from reasonable use of the land except for that it cannot interfere with the easement
- ST owner must not pay towards its maintenance or carry out additional work for the DT owner to exercise this right
- DT owner cannot ask ST owner for permission to exercise the right
how is an easement expressly acquired?
can be granted or reserved when a land is sold or independently granted or reserved in a deed
valid acquisition of express legal easements
- legal easement = fixed duration
- registered land = registered to be enforceable - in Charges Register of ST and Property Register of ST
- unregistered land = legal easements bind the world - no need for registration (but with acquiring land, must be registered after first registration so lodge a caution against first registration to be notified when land is registered to properly register the easement)
valid acquisition of express equitable easements
- equitable easement = estate contract to create legal easement of fixed duration OR inherently equitable easement without fixed duration
- registered land = protected by notice in Charges Register of ST
- unregistered land = registered in Land Charges Register against owner of ST
how is an easement impliedly acquired? (5)
- prescription: uninterrupted continuous use for 20 years
OR implied into a deed/contract from which it was omitted:
- implied by necessity
- implied by common intention
- implied by wheeldon v burrows
- implied by s 62 Law of Property Act 1925
implied by necessity
- existence of easement must be essential and necessary to use DT (not where there is an alternative method or would make the land more enjoyable, cheaper, or easier to use)
- can be impliedly granted or reserved when selling land
- can be implied into a contract or deed
implied by common intention
- where land is sold or leased for a specific purpose and that purpose cannot be fulfilled without the easement
- can be impliedly granted or reserved when selling land
- can be implied into a contract or deed
implied by the rule in wheeldon v burrows
where owner sells / leases part of their land, an easement can be impliedly GRANTED only if they used the right as a quasi easement before the land was sold (can be excluded by contract)
requirements
- quasi easement was continuous (permanent)
- quasi easement is apparent from inspecting the land (cleared path, manhole cover)
- easement is NECESSARY for the reasonable enjoyment of the DT
- easement must enhance the value of the land not just benefit DT owner personally
- quasi easement was used by the single owner at the date of the transfer / lease
implied by s 62 Law of Property Act 1925
applies to grants of easements by deed
2 cases
- DT and ST were owned/leased by separate people, ST owner gave DT owner an informal permission or licence to use ST, this can be upgraded and implied into a subsequent conveyance as an easement
- no prior diversity of occupation and quasi easement used by ST owner can be implied into the conveyance - requirements:
- quasi easement exercised regularly by ST owner before conveyance
- quasi easement expected to be exercised in the future
- quasi easement is apparent from inspecting the land (cleared path, manhole cover)
how are implied legal easements enforceable?
registered land = binds as an overriding interest if:
- new owner has actual knowledge of the easement, or
- easements apparent from inspecting the ST (cleared path, manhole cover), or
- easement was exercised for 1y before the transfer
unregistered land = legal easements bind the world - no need for registration (but with acquiring land, must be registered after first registration so lodge a caution against first registration to be notified when land is registered to properly register the easement)
what is a freehold covenant? benefits?
- promise relating to land to do or not do something on one’s own land
- covenantor owns ST and covenants with covenantee owning DT to do or not do something relating to the DT
- enforceable between original parties under privity of contract but no direct relationship between successors in title so burden and benefit must pass to be enforceable
how are restrictive covenants enforceable against successors in title? burden (5), benefit (2 ways), remedies (2)
equity rules to pass burden to successor covenantors
- must accommodate the DT = must affect the nature, quality or use of the DT and only benefits DT owner in their capacity as owner not personally
- DT and ST are sufficiently proximate
- intention to pass the burden (express wording to benefit the land known as x or covenant on behalf of itself and successors in title OR implied unless covenant drafted as personal to owners)
- Registered land = notice in Charges Register of ST / unregistered land = land charge against ST owner (otherwise will not bind purchasers but will bind donees)
- created in writing and signed by covenantor
equity rules to pass benefit to successor covenantees
- automatically passes when DT is sold = express wording to pass benefit to successors in title or implied, or
- assignment of benefit to successor covenantee
remedies for breach
- prohibitory or mandatory injunction (equitable and discretionary)
- damages in lieu of injunction
how are positive covenants enforceable against successors in title? burden (5 points), benefit (2 ways)
burden
- burden of positive covenant does not pass to successor covenantors in common law
- burden remains with original covenantor who can be sued for breaches of their successors in title who cannot be sued
- original covenantor will require successors to provide indemnity covenant allowing them to pursue successors if the covenant is breached (personal right but risk that successors cannot pay) = there will be a chain of indemnity, shown in proprietorship register of ST
- exception = burden will pass in common law if the successor covenantor benefits from the covenant and had a genuine choice to accept the burden
- covenantee can put a restriction in proprietorship register of ST stating that ST cannot be transferred without the prior consent of the covenantee conditional on directly covenanting with the new owner to observe the positive covenant (there will be privity of contract then)
benefit
- express assignment of benefit from covenantee to successors in title in writing, or
- implied if = covenant touches and concerns the land (benefits the DT AND there is an intention the covenant is to run with the land (‘with the intention of benefitting the land known as X’ wording of original covenant)
if someone is occupying land they do not own (not under a lease), will they have a right to that land?
- equitable leases and equitable interests under a trust of land (e.g., where overreaching does not occur) will bind the land as an overriding interest if they were in ACTUAL OCCUPATION OF THE LAND
- actual occupation = occupation had a degree of permanence and continuity, intended to exercise the right, length of absence is not prolonged, and other objective and subjective factors
- exceptions:
- enquiry was made of them but they did not disclose their interest
- occupation was not obvious on reasonable inspection of the land and the person did not know of their interest
