Land

Question 1

What are the requirements for the s 62 upgrade to apply?

Implied legal easements

Answer 1

1. Must be a right that would be a grant to C
2. Must be prior diversity of ownership
3. Original landowner must grant informal permission/right
4. There must be a conveyance

S 62 can only be implied into a conveyance

Question 2

How will an implied legal easement be enforceable against servient owner on unregistered land?

Answer 2

Same as express legal easement over unregistered land - overriding interest on first registration

Legal easements ‘bind the world’ in unregistered land

Question 3

How will an implied legal easement be enforceable aginst servient owner on registered land?

Answer 3

Will be overriding interest provided:
* Easement is within actual knowledge of new owner; or
* It is obvious on a reasonably careful inspection of the servient land; or
* It has been exercised within a year before the transfer of the servient land

Question 4

Does the no additional expenditure rule mean the servient landowner is not obliged to carry out repairs to enable the dominant landowner to enjoy an easement

Answer 4

Yes

However, servient landowner must permit dominant landowner onto land to carry out repairs at dominant’s expense

Question 5

What are the 4 capability rules for an easement under Re Ellenborough Park?

Answer 5

1. Must be a dominant and servient tenement
2. Accommodate (benefit) dominant land
3. No common ownership
4. Right must lie in grant

Question 6

What are the 4 tests that must be met for a right to qualify as an easement?

Answer 6

1. Fall within definition of easement
2. Capable of being an easement (Re Ellenborough)
3. No disqualifying factors apply (3 Ps)
4. Must be acquired as an easement

Question 7

What factors must the court consider when reaching a decision on an application?

5 possible factors

Answer 7

1. Intentions of the persons who created the trust [not co-ownership - refers to expressly created lifetime trusts]
2. Purpose for which property subject to trust is held
3. Welfare of any minor who occupies/might reasonably occupy land subject to trust as his home
4. Interest of any secured creditor of any B
5. Circumstances and wishes of any Bs of full age or of the majority

All factors weighted equally

Question 8

FREEHOLD COVENANTS

What are the 4 requirements for burden of a covenant to pass in equity?

Answer 8

1. Covenant must be restrictive (ie no +ve covenants)
2. Covenant must accommodate the dominant tenement
3. There must be intention for the burden of the covenant to run
4. Must be notice of the covenant

Question 9

FREEHOLD COVENANTS

What does it mean that covenantee and successor covenantee must hold an interest in the land at time of creation and enforcement?

Accommodate dominant tenement factor

Answer 9

Must be a dominant tenement that can be benefitted so original covenantee and successors must have retained an interest in the dominant land at time of creation and enforcement of covenant

• Original c’tee will hold freehold to dominant land at time of creation
• Successor will hold at time of enforcement

Question 10

FREEHOLD COVENANTS

At its most simple, what does it mean for a covenant to touch and concern the land?

Answer 10

The covenant must benefit the LAND and NOT the person using/owner

Cannot be expressly personal, for instance