Easements And Freehold Covenants

Question 1

Is an easement capable of being legal?

Answer 1

Yes if it’s a freehold or leasehold.

The legal easement must be completed by registration to take effect at law. If there is no registration of title then it will only take effect in equity.

No if it’s an uncertain duration (will only exist in equity).

Question 2

What is the difference between a grant and reservation?

Answer 2

Grant - land owner created an easement in favour of the buyer.

Reservation - land owner created an easement in favour of their own land when selling to a buyer.

Question 3

What are the 4 characteristics that must be present in order for a right to exist as an easement?

Answer 3

(A) must be dominant and servient land.
(B) easement must accommodate the dominant tenant.
(C) dominant and servient tenements must not be both owned and occupied by the same person.
(D) easement must be capable of being granted by deed.

Question 4

What are the only negative easements recognised at law?

Answer 4

Light

Air

Support

Question 5

What is an easement implied by necessity?

Answer 5

When there is no means of access to the property

Question 6

What is an easement implied by common intention?

Answer 6

Easement which is essential in order for that purpose to be carried out.

Question 7

Rule in Wheeldon v Burrows

Answer 7

Only applies to a grant of an easement.

The effect is to convert quasi-easements into easements.
This occurs when a land owner sells part of their land.

Question 8

Section 62 LPA 1925

Answer 8

Operates to pass automatically to a buyer all existing rights without the necessity of formal words in the conveyance

Question 9

Prescription

Answer 9

Where the dominant owner can show use of the right for 20 years, the court will uphold the legal right by presuming that it had a lawful origin

Question 10

What are the 3 types of prescription?

Answer 10

(A) common law - easement has been presumed if it has been enjoyed continuously since 1189 for 20 years or more.

(B) doctrine of lost modern grant - same as common law but the grant has been lost - there is a gap in use exceeding one year.

(C) prescription act 1832 - dominant owner can show user as of right for 20 years (30 years for profits) even though the user clearly commended sometime after 1189.

Question 11

Positive covenants

Answer 11

Requires some effort or expenditure to perform the obligation e.g. contribute towards the cost of the maintenance of the shared driveway.

Question 12

Restrictive covenants

Answer 12

Requires no such effort or expense e.g. not to divide the property into flats.

Question 13

What is the original covenantor bound by?

Answer 13

Privity of contract
- potential liability to last forever even after the land has sold.
- obligation relates to all covenants.
- burden of the covenant cannot pass in common law, the original covenantor will always be bound by the promise.
- burden of a restrictive covenant may pass in equity.

Question 14

Indemnity convenant

Answer 14

In the event of the original covenantor being sued for a breach of a positive convenant, they can sue their successor on the indemnity and so on down the line.

Question 15

Annexation

Answer 15

Permanent attachment of the covenant to the dominant land.
This enables the owner of the dominant land to enforce the covenant e.g. maintaining the driveway.

Question 16

What are the 3 types of annexation?

Answer 16

Express - covenant should express an intention to benefit the whole of the dominant land.

Implied - where such annexation was obviously intended and it would be an injustice to ignore it.

Statutory - s.78 LPA was to automatically annex a freehold covenant to each and every part of the land retained by the covenantee, provided the covenant was created after LPA and the covenant must touch and concern the land.

Question 17

Express assignment

Answer 17

Possible for the benefit of a covenant to pass to a successor.

Must take place at the same time as the transfer of the land.

Must be in writing and signed by the assignor (original covanantee).

Written notice of the assignment must be given to the person with the burden of the covenant.

Question 18

What are the methods of removing or limiting the effect of a freehold covenant?

Answer 18

(A) express release - covenantee may agree to release or modify a covenant. A deed is required and payment is usually negotiated for such a release.
(B) Common ownership - where the servient and dominant land come into common ownership, the covenant will be extinguished.
(C) S84 LPA 1925 - applies only to restrictive covenants. An application can be made to the lands chamber of the upper tribunal to discharge or modify the covenant in whole or in part.
(D) insurance - related to restrictive covenants only. An insurance policy is purchased for a one off premium. In the event of the dominant owner seeking to enforce the breach of a restrictive covenant, the insurer accepts the financial risks of such action.

Question 19

Who is the covenantor and covenantee?

Answer 19

Covenantor - upholds the promise and has the burden of the covenant.

Covenantee - recipient of the promise and has the benefit of the covenant.

Question 20

Mutual benefit and burden only applies to which covenants?

Answer 20

Positive