Incorporeal Interests Flashcards
Types of Incorporeal interests:
Easements e.g. a right of way. Can bind third parties (i.e. subsequent owners)
Profits a prendre i.e. a right to enter land and take something from it, e.g. minerals, timber, crops. Can bind third parties (i.e. subsequent owners)
Covenants e.g. a right to prevent a neighbour from operating a pig farm. After Tulk v. Moxhay may bind third parties (i.e. subsequent owners) if they had notice
Licenses i.e. a right to do something on someone’s land that would otherwise constitute trespass. Generally cannot bind a third party (i.e. subsequent owner) but change may be occurring similar to that in Tulk v. Moxhay for covenants
What is an Incorporeal Interest?
Incorporeal interests in real property are those that cannot be possessed physically, since they consist of rights of a particular user, or the right to enforce an agreement concerning use.
Negative Easements
Negative easements – do not confer a right to enter onto the servient tenement, but restrict the owner of the servient tenement in his/her use of it in a way which benefits the dominant tenement. A right to prevent your neighbor from doing something on his or her own land (very limited)
i) E.g. the servient tenement owner agrees to refrain from building structures that would interrupt the light or air from reaching the dominant tenement
3) Negative easements are similar to restrictive covenants, but there are differences:
a) Negative easements are more restricted in what subject matter they can cover, whereas restrictive covenants can cover a broader range of things (including new things) since has other safeguards (Phipps v. Pears)
b) Negative easements limited to matters that can be the subject matter of a grant, whereas restrictive covenants can be made simply by agreement
c) Negative easements can be legal and equitable, whereas restrictive covenants can only by equitable
d) Negative easements bind third parties even without notice, whereas restrictive covenants cannot bind without such notice
e) Negative easements are subject to prescription, but not with restrictive covenants which must be by agreement and requires notice (prescription = after some period of peaceable, uninterrupted, non-secret use an easement can be created, such as right of support for buildings or light, although note presecription doesn’t apply in land title jurisdictions)
f) Easements are created by a grant, whereas covenants are made by an agreement under seal
Positive Easements
Positive easements – gives the owner of the land benefited (dominant tenement) the right to enter the land burdened (servient tenement) for some purpose
i) E.g. a right of way to pass over another’s land
ii) I.e. a right to use the land of another in a particular way, but that is short of possession and that does not include the taking anything away (would be profit a prendre)
What is an Easement
Easements are registered as a charge on the land, and are generally enforceable against 3rd parties i.e. considered proprietary at law, running with the land
Two types. (positive, negative)
Two things to distinguish easements from:
natural rights (i.e. riparian, support, accretion perhaps) which come as part of the land itself, and therefore corporal hereditaments
public rights such as public rights of way (i.e. paths that everyone can use) across private land. Easements are between a dominant and servient tenement – they can’t be used by anyone
Restrictive covenant (negative)
can allow you to get around the restrictions of negative easements. (wind, sun, weather, view etc)
Not going to get v far with a negative easement at CL, better to go to equity with a restrictive covenant and all the conditions it requires
Requires dom touch and concerned, registration of negative to run, privity of contract and or estate. Requires same interest held and common intent to run with land. Positives cannot pass burden (Parkinson) unless takes benefit (halsall), negatives can pass burden at equity only with notice and registration as well as common intent and dom and serv. Must touch and concern land.
Phipps v Pears (1965, QBCA)
Cannot get a negative easement for (but note these situations can be covered by restrictive covenants, which have safeguards, namely that notice must be given to third party and prescription does not apply):
(1) Obstruction of view
(2) Receive wind in an undefined channel (however, can get a negative easement for air flow in a defined channel, such as a ventilation shaft to a cellar)
(3) Sun (not in a “shaft”), shade
(4) Protection from weather (as in this case)
While courts have been willing to apply positive easements to new technology and expand the allowable categories, they have been very cautious when it comes to negative easements, and it is unlikely that they will expand the categories since they hamper titles and development, limit neighbours in their use of land, can bind 3rd parties automatically, can appear by prescription (although prescription has gone in B.C.), etc
For policy reasons there is no easement by which a dominant tenement can be protected from the weather. If such easement were to be permitted, it would unduly restrict a neighbour from the use of his land. The only way for an owner to protect himself from the weather is to get a restrictive covenant from his neighbour, which would be binding in contract and would be enforceable against third parties (subsequent owners) provided there was notice.
Re Ellenborough (1956, CA)
Requirements for an easement:
1) dominant and servient tenants
2) Must objectively benefit dominant tenement (question of fact- must be proximate, connected with normal enjoyment of land itself, increase in value is considered but not determinative)
3) At CL dominant and servient owners must be different ( abolished here by s.18(5) & 18(7) of the Property Law Act)
4) Must be proper subject matter to form an easement grant ( sufficiently defined and certain - not too wide or vague, consistent with right of possession of servient tenement, must possess utility or benefit (kinda overruled by this case but could also say walking is the utility) )
5) Parties need ability to act as giver and receiver of the grant
6) Must be an intent to run with the land and bind future parties.
As long as sufficiently precise and is not interfering with possession of owner, easement now can be just for recreation.
Effect of Registering covenants
Today (in order to bind future owners) must be registered as a charge on servient land and noted on the dominant land (but just because registrar accepted them as covs doesn’t mean they are valid, that’s up to the court). Although recall s.29 of the Land Titles Act concerning unregistered interests
B.C. Land Title Act
s218
s. 218(1) – A person may create an easement without a dominant tenement, to be known as a statutory right of way, for any purpose necessary for the operation and maintenance of the grantees undertaking. The grantees may be the Crown, a Crown corporation, municipality, public utility, pulp/timber corporation, etc.
ii) s.218(2) the rule requiring an easement to have both a dominant and servient tenement is abrogated as far as subsection (1) requires
B.C. Property Law Act
s18
(overturns common law requirement that owners of the dominant and servient tenements be different persons):
s. 18(5) – the owner in fee simple (or owner of a registered lease or sublease), may grant to himself an easement or a restrictive covenant over land that he owns for the benefit of other land that he owns (registered). This grant must be consistent with the interests held by him as grantor and grantee at the time of the grant.
ii) s.18(7) – common ownership of the dominant and servient tenements does not extinguish an easement; in other words they no longer have to be two separate owners of different lands.
Incorporeal hereditaments
are proprietary i.e. they run with the land.
Covenants are not really incorporeal hereditaments – more akin to contracts
Covenants
If there is privity of contract it is binding i.e. if the parties who originally made the covenant are involved, the covenant is enforced as a contract.
If no privity of contract but there is privity of estate benefit of covenant is enforceable between new parties as long as the contractual terms “touch and concern” the land
If neither privity of contract nor privity of estate, there are differences between the common law and Equity
Difference between covenants at CL and Equity?
At equity:
i) Includes benefits running with the land
ii) After Tulk v. Moxhay, burden can also run with the land i.e. a restrictive covenant
iii) Thus needs both a dominant and servient tenement
iv) Notice required for successive owners to be bound (Tulk v. Moxhay) and also registration (s.29 PLA, s221 LTA)
v) Need an intent by original parties that it should run with the land
Common Law covenants: Only the benefit runs with the dominant tenement/ can be passed to successors. No burden could run. If the burden cannot shift anywhere, was there a need for a servient tenement? No. Benefit runs with the dominant tenement but it can only be enforced by the person who originally assumed the burden and not their successors. The passing of a burden is purely in equity and purely under the restrictive/negative covenant. which must have notice.
