Easements and Covenants

Question 1

What is an easement?

Answer 1

It is the right to pass over the land of someone else.
An easement may be positive or negative.

Question 2

What is the meaning of “profit à prendre”

Answer 2

Profit à prendre is the right to remove the products of natural growth from another person’s land.
Profit à prendre is to allows someone to go on someone else property and collect something.

Question 3

What is a covenant?

Answer 3

It is a contract, an agreement or a promise to do something or to provide something to someone.

Question 4

What are the 4 requirements for an easement?

Answer 4

1. Both a dominant and servient tenement.
2. The easement must accommodate the dominant tenement.
3. The Dominant and servient tenement must have different owners.
4. The right at issue must be something we say its capable of forming a grant.

Question 5

Does an easement run with the land?

Answer 5

YES, easement continue after you sell the property to another person.

Question 6

What are the ways to create easements?

Answer 6

1. By express grant
   1.1. The servient owner will in the deed, provide for an easement in favor of the dominant.
   1.2. Express reservation
2. Implied grant
   2.1. By necessity
   2.2 Common intention (ex : Wong v Beaumont Property Trust)
   2.3 Through the operation of the rune in Wheeldon v. Burrown - easement happens when there are 2 distinct piece of land thaht are hold by the same person.
3. Statute
4. Prescription

Question 7

How to end and easement?

Answer 7

1. Agreement or release
2. Merging (you are now the owner of the property so don’t need an easement to get access to it)
3. Abandonment

Question 8

Will the non-use of a profit cause it to be extinguished?

Answer 8

No. However, if the nature of character of the dominant tenement is changed then a presumption of extinguishment arises.

Question 9

Does positive covenant runs with the land?

Answer 9

No

Question 10

Does negative covenant runs with the land?

Answer 10

Yes. However, to run with the land, the covenant has to be reiterated in the deed, at law.

Question 11

Wha is a successor / subsequent purchaser in title bound by the covenant?

Answer 11

When we have these 4 conditions :
(1) When the covenant is negative (I will not build something on the land)
(2) The covenant must benefit the dominant tenement. Which must be held by the covenantee.
(3) The covenant must “touch and concern” the land (it must not be something personal, you are doing it to benefit the land).
(4) There must be an intent to burden the servient land.

Rule of Tulk and Maulksay

Question 12

What happens when none of the original parties are present?

Answer 12

only equity may come to the aid of the respective successors in title.

Question 13

What are the 3 ways you might be liable in equity?

Answer 13

(1) by annexation
(2) by assignment and
(3) by showing the existence of a building scheme.