Easements And Freehold Covenants Flashcards
Re Ellenborough Park (1956)
The court granted the easement and outlined the conditions for the granting of an easement. In the leading judgement Evershed MR stated that an easement may be granted as long as 1) there is a dominant and a servient tenement 2) the easement must accommodate the dominant tenement and the easement must be linked to the use of the dominant tenement 3) The dominant and servient tenements must have different owners and 4) the right must be capable of being the subject matter of a grant (this is necessary as easements do not physically exist and this cannot be passed by possession , leaving a grant as the only option. Further , the right must not be purely for recreation - it must have utility.
Rhone v Stephens 1994
Summary: The burden of a covenant will never pass to a successor of the servient land.
Detail : Following Austerberry v Corporation of Oldham (1885) , a positive covenant was not enforceable in common law because the successor in title was not party to the contract containing the covenant.
The burden of positive covenants did not run with the freehold and was not enforceable in equity, although breach of a negative covenant which restricted the user of land or the exercise of other rights in connection with land could be prevented or punished in equity .
The rule of that positive covenants did not run with the freehold was not affected by s.79 Law of Property Act 1925 which merely made it unnecessary to refer to successors in title in covenants in conveyance. I’m
Tulk v Moxhay (1848)
In equity, equity will allow the burden of a covenant to pass from an owner of the servient tenement to his successor in title, where the four requirements are met :
•The covenant must be negative in nature
•The covenant must accommodate the dominant land
•the original parties must have intended for the burden to pass with the servient land
•The purchaser of the servient land must have had notice of the covenant
As a covenant amounts to a contract between a vendor and vendee, it is enforceable against a purchaser for value with either constructive or actual notice. As Moxhay had actual notice of the covenant, he was obligated to abide by it.
