Land Flashcards
What type of right is an easement?
Proprietary
Who is the dominant tenement?
The land getting a benefit in an easement
Who is the servient tenement?
The land getting the burden in an easement
Can easements be a legal interest
Yes
How long will a right of drainage be granted if granted in a 5 year lease?
For the term of that lease
How long will a right of way granted when freehold land is sold be granted?
Forever
When can an easement only be equitable?
When it is not granted for the equivalent of a freehold or leasehold estate term
What is a positive easement?
Allows the owner of dominant land to use the servient land in a particular way
What is a negative easement?
Prevents the servient landowner from doing something on their land by giving the dominant land owner the right to receive something
What are the 3 possible/recognised negative easements?
Right to light
Right to air
Right of support (e.g., from a shared wall)
What 5 types of rights are commonly confused with easements?
Quasi easements
Public rights
Licenses
Profits a prendre
Restrictive covenants
What is a quasi-easement?
Potential easements, things that could become easement if the land was ever divided (e.g., land owners using pathways on their own land)
What are public rights and how are they different from easements?
Unlike easements, who are for the dominant land, a public right can be exercised by the public
What does a profit a prendre mean and how is different from an easement?
In a profit a prendre, you can take things from the land to sell like fish. But in an easement you can’t.
What is a grant in terms of easements?
When a landowner who severs their land, gives the new occupier an easement over the land which they have retained
What is a reservation in the context of easements?
When a landowner severs their land, and retains a right over the sold/leased portion
What does it mean to derogate from the grant in the context of easements
If a landowner does a reservation for their easement, it is construed strictly and they cannot then widen it later
Where are most express easements created?
In writing in the transfer deed or lease
Can easements be created as a part of a separate deal then a sale etc
Yes
What is the rationale between why an easement can be impliedly created legally?
It is ‘written in’ to the original document it was ‘omitted’ from
What is the general criteria for an easement to arise from prescription?
Long use
At least 20 years
Continuous
As of right (e.g., no permission or force)
Are easements by prescription legal or equitable?
Legal
What are the 3 types of prescription?
Prescription at common law
Prescription under the doctrine of Lost Modern Grant
Prescription Act
When will prescription succeed under the prescription act 1832?
If user can prove uninterrupted enjoyment for the 20 year period
What = an interruption for the purposes of the prescription act?
No use for 1 year or more
What 5 questions must you answer yes to, in order to determine that a right has been acquired by prescription?
Has the right been used for at least 20 years by a freeholder against a freeholder?
Has the right been exercised regularly?
Without force?
Without secrecy?
Without permission?
Can a prescriptive right be created between a freeholder and a leaseholder?
No
Can rights to light be infringed if there is no defined aperture it is blocking?
No
What 3 things must you check to determine whether something is an easement or a license?
Is it capable of being an easement in principle
Is the right prevented from being an easement by a disqualifying factor?
Has the right been acquired as an easement?
How do you determine whether the right is capable of being an easement?
Tests in Ellenborough Park
What are the 2 factors which could disqualify a right from being an easement?
Additional compulsory expenditure by the servient owner
Use which amounts to exclusive possession or permission
In which 3 ways can a right be acquired as an easement?
By complying with the statutory formalities for an express grant or reservation
By being acquired impliedly by one of the recognised methods
By being acquired by presription
What are the 4 tests that must be met to determine whether a right is capable of being an easement under Ellenborough Park?
- Must be a dominant and servient tenement
- Right must accomodate the dominant tenement
- There must be diversity of ownership
- The right must lie in grant
What are useful questions to ask when determining whether a right accommodates the dominant tenement?
Does the right benefit any owner of the land?
Does the right cease to be of use once the dominant owner has parted with the land
Does the right make the dominant land a better or more convenient property?
Does the right add value or amenity to the dominant land?
What question do you ask, when determining whether a right benefits the land itself or a business run from that land?
Is the business a necessary incident to the use of the land or a completely unconnected business?
Can a right accommodate a dominant tenement if it is far away?
No, must be sufficiently proximal
What would happen to an easement if previously severed land was merged?
The easement would be extinguished
What are the 3 criteria to satisfy whether the right (potential easement) lies in grant?
Was it granted by a capable grantor to a capable grantee?
Is it capable of reasonably exact description?
Is it judicially recognised?
What does it mean to be a capable grantor/grantee?
18+ and own the legal estate
What are examples of rights that have been judicially recognised as easements?
Rights of way
Rights of drainage
Right of support
Right to use sporting and leisure facilities
Right to use land for recreation
Right of storage
Right to park
What do you have to satisfy after determining that the right is capable of being an easement under Ellenborough?
Disqualifying factors
What are the 3 disqualifying factors for something being capable of being an easement for Ellenborough?
Right must not amount to exclusive possession of the servient tenement
Right must not involve additional, unavoidable expenditure by the owner
Right must not depend on permission
What are the 2 tests which amount to exclusive possession?
Ouster principle
Possession and control
What is the easement disqualifying factor ‘ouster’ principle?
No reasonable use of the land is left because of the ‘easement’
What is the possession and control test?
Does the servient owner retain ultimate possession and control of the servient land subject to reasonable exercise of the right?
Is the ouster principle binding law?
Yes
Is the possession and control test binding law?
No – Scotland
Are the courts generally more favourable towards the person claiming the easement or rebutting?
Claiming
If there is a question about rights to store and park, and the servient landowner retains control of the space and is theoretically able to do anything with it… who would the courts favour?
The person claiming the easement should not be disqualified
Is a servient tenenment owner obliged to carry out repairs or maintenance of the easement?
No
Must the servient tenement allow the dominant owner to carry out repairs etc?
Yes
If someone moves or withholds using the easement on request, can they still be using the easement as of right?
No
Can an easement granted potentially forever be legal?
Yes
Can an easement granted or reserved for a set period be legal?
Yes
Can an easement granted for a period that is not forever but is also not for a set period be legal?
No
To be a deed, what formalities must a document comply with?
Clearly intended to be a deed
Signed by a grantor and witnessed
Delivered/date
Does an express legal easement need to be created by deed?
Yes
What do you need to do to finish creating a legal easement over registered land?
Register the land
Where is an easement noted on the register?
The dominant lands title and burden is noted in the charges register of the servient lands title
What happens if formalities for a legal easement are not met?
It could be recognised as an equitable easement
What is an inherently equitable easement?
One that wasn’t granted or reserved for a freehold or leasehold term or was an uncertain term
What are the minimum formalities for an equitable easement?
In writing
Signed by the grantor
What can failed legal easements be determined as?
Estate contracts
What is the effect of an estate contract for an easement?
A contract agreeing to create a legal easement
To create an estate contract for legal easements, what are the minimum formalities that must have been complied with?
In writing
Signed by both parties
Includes all expressly agreed terms
Do you have to register legal easements for less than 7 years?
Yes
What are the 4 methods of implied acquisition for an easement?
Necessity
Common intention
Wheeldon v Burrows Rule
LPA 1925 s62
What does an implied legal easement technically do?
Imply the easement into a transfer deed or a legal lease
What does an implied equitable easement do?
Implies the easement into a contract or an equitable lease
Where does an implied easement take its status from?
The document it was implied into
How wide is the scope of implied easement by necessity?
Very narrow, existence must be essential in order that any use of the dominant tenement can be made
What is the type of easement that can be implied by necessity?
Right of way to otherwise landlocked land
Can rights to drainage, sewerage and electricity be implied by necessity?
No
When is an implied easement by common intention able to be formed?
Where land has been sold/leased for a particular purpose and that purpose cannot be fulfilled without the easement sought
Is a general intention to how the property should be used enough to create an implied easement by common intention?
No
If there is an easement for a parking space, will that show sufficient common intention to use the road leading to it as well?
Yes
What are the 3 criteria to fulfil a common intention easement?
Dominant land must be sold or leased for a specific purpose
Purpose must be known to both parties
Easement claimed must be essential to achieve the common purpose
Would a plot of land sold as a building plot show a common intention easement for drains, sewer etc?
Yes
Is it easier to demonstrate common intention if you are the granting or reserving power?
If the power was granted
Does Wheeldon v Burrows apply to grants or reservations?
Only grants
What is the effect of Wheeldon v Burrows?
Quasi-easements will be implied into full easements
What are the 5 requirements in Wheeldon v Burrows?
Only applies where right would be a grant
Continuous and apparent
Quasi-easement:
Necessary for reasonable enjoyment of dominant land
In use by the common owner at the date of the transfer or lease of the dominant land
Does Wheeldon v Burrows apply when selling the whole of a piece of land?
No, can only happen on division of land
How does the requirement ‘necessary for the reasonable use of the land’ get met for Wheeldon?
If the right enhances the land in some way
Can you exclude Wheeldon v Burrows in a contract or lease?
Yes
Can easements be implied by the LPA 1925 s62 for grants or reservations only?
Grants
What type of document will LPA 1925 s62 imply an easement into?
A conveyance (ie a deed, transfer of land)
What is the effect of LPA 1925 s62?
When somebody buys freehold land or leases in land, the buyer or tenant will receive the benefit of all existing easements whether they have been expressly or impliedly granted
What is the upgrade effect?
Informal rights get upgraded into a full legal easement when there is a new conveyance
What are the requirements for the upgrade effect to apply?
There would have been a grant to the claimant
There was prior diversity of occupation of the dominant and servient land
An informal permission or license was granted to the occupier of the dominant tenement to use the servient land in some way
There must have been a conveyance
Can you exclude LPA 1925 s 62 in a contract?
Yes
What is the recent development of in terms of applications of LPA 1925 s62
Now, the requirement for prior diversity of occupation of the dominant and servient land is not necessary where the right is continious and apparent
What does the recent development in terms of wider scope for s 62 LPA do?
It can apply in Wheeldon v Burrows circumstances where the land has only recently been divided and the claimant doesn’t have to show ‘necessary to the reasonable use of the land’ criteria
Why has LPA 1925 s62 not made Wheeldon v Burrows obsolete?
Cause it only applies on a conveyance but Wheeldon v Burrows can imply an easement into a contract
Will benefit pass with the land for an equitable easement?
Yes
Where does the benefit of an easement appear on the register?
The property register
What happens to a legal easement when land is registered for the first time?
The express legal interest will be an interest overriding the first registration of the servient land and will become noted on the charges register
Under what maxim are express legal easements binding against new servient owners?
Legal interests bind the world
What 3 criteria need to be met for an implied legal easement to be an overriding interest on registered land?
- Easement is within the actual knowledge of the new owner OR
- It is obvious on reasonably careful inspection of the land OR
- It has been exercised in the year before the transfer of the servient land
In what way/why is an implied legal easement enforceable over unregistered land?
Legal interests bind the world
Is an express equitable easement always enforceable against a grantor?
Yes
Is an express equitable easement always enforceable against a new servient owner?
No, it must be protected
How can you protect an express equitable easement?
registered land
- Notice entered in the charges register of the servient land
Is a volunteer, e.g., somebody who is gifted land bound by unprotected express equitable easements?
Yes
Who is not bound by an express equitable easement that was not protected?
A purchaser for value
Do express equitable easements need to be protected on unregistered land?
Yes
What must be registered and where to protect an express equitable easement on unregistered land?
Class D (iii) Land Charge
Are the protection rules for implied equitable easements the same as those for express?
Yes
What 3 remedies are available for easements?
Mandatory injunction to remove obstruction
Prohibitory injunction to prevent interference with the enjoyment of the easement
Damages in lieu of injunction or in addition
Who is the covenantee?
The person who required somebody else to enter into the covenant
Who is the covenantor?
The person who has to obey the covenant
Whose land is servient (covenants)
The covenantors
Whose land is dominant (covenants)
The covenantee
What is a positive covenant?
A promise to do something
What is a negative covenant?
A promise not to do something
How are covenants enforceable?
Privity of contract
Is there a direct legal relationship between the successor covenantee and covenantor?
No
Why is it important to see whether the benefit and burden have passed?
Because if it doesn’t pass, it won’t be enforceable
Can positive covenants be enforced against a successor covenantor in equity?
No
What is a mixed covenent?
A promise which has both positive and negative elements
What 2 types of mixed covenants are there?
Conditional (don’t do x without permission) (cannot be split)
Separate (can it be split)
What is the general rule regarding whether the burden of a covenant passes to a successor at common law?
The burden doesn’t pass
What case determines/sets out the tests as to whether the burden of a covenant passes at equity?
Tulk v Moxhay
What are the 4 requirements in Tuck v Moxhay
- Covenant must be restrictive
- Covenant must accommodate the dominant tenement
- There must be intention for the burden of the covenant to run
- There must be notice of the covenant
*passing burden in equity
Can positive covenants be enforced in equity?
No
Requirement: the covenant must accomodate the dominant tenement
What are the 3 aspects to the second requirement under Tulk v Moxhay?
- Covenantee and successor covenantee must hold an interest in the land at the time of creation and enforcement
- The covenant must touch and concern the land
- The dominant and the servient land must be in proximity
What does it mean that the covenantee and successor covenantee must hold an interest in the land at the time of creation and enforcement?
Basically the person suing has to still own at least some of the land
What does it mean that the covenant must touch and concern the land? (3 TESTS) (for burdens)
- must only benefit the dominant owner whilst they own dominant land
- should affect the nature, quality, use or value of dominant land
- should not be expressly personal
In what 2 ways can you show that there must be intention for the burden of the covenant to run?
- Express clause
- Impliedly: LPA 1925 says that a covenant will be deemed to pass unless there is contrary intention written
How is notice given of a covenant over registered land?
Notice in the charges register of the servient title
How is notice given of a covenant over unregistered land?
The covenant must be protected by a Class D (2) Land Charge
Is a donee of land bound by a covenant without notice?
Yes
Is a purchaser for value without notice bound by a covenant?
No
What 2 things must be shown if a successor covenantee wishes to enforce a breach against a successor covenantor?
- That the burden of the covenant has passed to the successor covenantor in equity
- That the benefit has passed to the successor covenantee in equity
To enforce a breach against a successor covenantor, is it enough to show that the burden has passed in equity and the benefit at common law?
No, for an equitable remedy both benefit and burden must pass in equity
What are the two elements which must be fulfilled for a benefit to pass in equity?
The covenant must touch and concern the land
The benefit must pass by one of the 3 methods in Renals
What is annexation (covenants)
When a covenant is made in such a way that the benefit becomes a permenant part of the dominant land itself
**passing benefit
What are the 3 methods by which the benefit of a covenant can pass in equity?
Annexation
Assignment
Building Scheme
What are the 2 ways in which annexation occurs?
Express
Statutory LPA s78
What is express annexation?
When the wording of the covenant makes it clear that the original parties intend the benefit to become part of the dominant land
Will express intention to benefit ‘their hiers, executors and assignees’ to a covenant be sufficient to show express annexation?
No
Will express intention to benefit ‘owners and successors in title’ be enough to demonstrate express annexation?
Yes
What does statute say about whether the benefit of a covenant passes?
It says that it will be deemed to be intended to benefit successors
If statute says that the benefit of a covenant will bind successors, then why does there need to be express annexation?
There doesn’t really, except that statutory annexation can be excluded
When does assignment of the benefit of a covenant happen?
When the dominant land is sold
Why would the benefit of a covenant need to be assigned?
Because it wasn’t annexed
Why would a covenant not have been annexed?
Express exclusion
Can’t be said to benefit the land itself
Once the benefit of a covenant has been assigned, does it have to be assigned again on subsequent sales?
Yes
What are the formalities for assigning the benefit to a covenant?
In writing, signed by the person transferring the benefit
What type of covenants does the building schemes rules apply to?
Restrictive only
What are covenants treated as if the conditions of a building scheme are met?
By-laws enforceable by and against all owners
Using the building scheme way to demonstrate passing of benefit, do you have to show benefit of that covenant to the particular claimaint?
No, deemed to benefit all in that building scheme
What are the 4 conditions of a building scheme?
- All buyers buy from the same seller
- The seller divided the estate into plots
- The covenants were intended to benefit all plots
- Each buyer buys on the understanding that the covenants are intended to benefit all plots
Will courts interpret the building scheme rules as guidelines or strict requirements?
Guidelines
What will the courts need to be satisfied of to apply the building scheme rules?
That it was the intention of the parties to create a scheme of mutually enforceable obligations
Once the original covenantee sells, can they still sue?
Technically yes
Why is it unlikely that the OG covenantee would sue after selling?
They likely can’t show a loss, and wouldn’t have much motivation cause they no longer live there
What types of remedies apply for a covenant breach?
Equitable remedies
What is the most common remedy for a breach of covenant?
Injunction
When is a prohibitory injunction used?
To prevent a future breach that hasn’t happened yet
When is a mandatory injunction used?
After a breach has happened, to rectify it (e.g., take the building down)
What happens if there is a delay in seeking a remedy for a breach of covenant?
Delay defeats equity
When might a breach of covenant result in damages instead of an injunction?
If it would be an ‘unpardonable waste’ (e.g., to tear down a bunch of much needed affordable housing
When awarding damages for a breach of covenant, what approach is the court likely to take?
Damages calculated that reflects the amount that theoretically would have been paid to the owner for release from the covenant (e.g., percentage of profit)
If a building needs demolishing because it breached a covenant to build, what type of injunction will be granted?
Mandatory
If an activity being carried out in breach of covenant needs stopping, what kind of injunction will be granted? (e.g., playing tennis)
Prohibitory
When do common law rules normally apply regarding covenant breaches?
For positive covenants because negative ones pass in equity
What happens to the burden of a covenant when a covenantor moves/sells?
It remains with the OG covenantor
Can the OG covenantor be sued for the breaches of its successors?
Yes
If there is no express wording that the OG covenantor will continue to be liable to successors, will liability still apply?
Yes, it will be implied by statute
What is the only remedy available to pursue against an OG covenantor and why?
Damages only because they are no longer in possession and control of the land
How can the OG covenantor protect itself?
Entering an indemnity covenant with the new buyer
What is the technical definition of an indemnity?
A primary obligation and agreement by one party to bear the cost of certain losses/liabilities suffered by another party in certain circumstances
What does the chain of indemnity to refer to?
Indemnities obtained normally because of positive covenants passing under common law which enables the OG covenantor to sue their successor to recover for breaches at the bottom of the chain until the breaching party is finally held liable
Can the covenantee sue the current servient land owner under common law enforcement?
No, they must sue the OG covenantor who then sues down the chain
What is the exception to the general rule that a burden does not pass to a successor at common law?
The doctrine of mutual benefit and burden
What case must you know regarding the doctrine of mutual benefit and burden?
The rule in Halsall v Brizell
What is the rule in Halsall v Brizell
The burden of a covenant can pass to a successor covenantor at common law where the covenantee grants the covenantor a benefit in the nature of an easement and imposes a connected burden
What is the typical example of a scenario under Halsall v Brizell
There is an easement allowing parking, on the condition of a covenant (burden) to contribute towards maintaining the parking spot…
The successor covenantor cannot take the benefit of the parking without accepting the burden of maintaining the spot
What are 3 conditions for the doctrine of mutual benefit and burden?
There must be a clear link between the burden and benefit (e.g., parking use, parking maintenance)
There must be a genuine choice as to whether or not to take the benefit (can be theoretical)
The benefit and burden must have been conferred in the same transaction
How can you sidestep the rule that the burden of a freehold covenant will not pass to a successor covenantor?
Grant a long lease instead, all covenants in leases except personal ones are enforceable by and against successors in title via the doctrine of privity of estate
Does the burden of a covenant pass if contained in a lease?
Yes, always
What does a successor covenantee have to show to be able to enforce the covenant?
That the benefit has passed to it
In what 2 ways can a benefit pass at common law?
Express assignment (in writing, and express notice of assignment given to the covenantor)
Implied assignment, if certain conditions are met
