Land Law Flashcards
What is a profit a prendre, option, dominant land, fine, puisne mortgage, servient land, time immemorial
- Profit = a right for someone to go on the land and take something which exists naturally e.g right to catch fish
- Option = an option to insist the land is sold at any point during a fixed period but the period must not exceed 21 years. Option fee is usually payable.
- Dominant land = Land benefitting for restrictive covenant or easement
- Fine = premium paid for granting a lease, in addition to rent usually
- Puisne mortgage = A pusine mortgage is essentially a second mortgage secured on a property where there is already a mortgage. Usually, in cases like this, the first mortgage will be secured on the title deeds of the property and the mortgage lender will insist that any other mortgages secured on the property are not secured on the title deeds. Puisne mortgages can be seen as unsecure secondary mortgages. They will usually have very high interest rates.
- Servient land = the land subject to or burdened by a restrictive cov or easement.
- Time immemorial = Date of legal memory - 1189
How far do rights above a property extend (airspace_?
What is the central principle of land law?
Bernstein v Skyview General rightds above a property only extend to height needed for “ordinary use and enjoyment”.
Central principle = land should not be unecessarily burdened.
Fixtures are part of the land and chattels are not, what are the two tests for if something is a fixure or a chattel?
- Degree of annexation
* Raises presumption of fixture that can be rebutted
* Is it easy to remove without causing signficiant damage - Purpose of annexation i.e why is it attached to land
* This takes priority
* Permenant improvement? Fixture
* Fixed to enjoy object? Chattel
* Unlike the presumption with degree of annexation, burden of proof lies with whoever is claiming the item is NOT a chattel
* TSB v Botham:- Ornaments like pictures usually chattels
- Free standing cooker is chattel
- Split level hob, built in oven and inset hob is fixture (hard to remove)
- Kitchen unit = fixture
- Applicances in kitchen are chattels as can be removed without damage
- Installed by builder likely to be fixture
- Bathroom fittings = fixture
- Gas fire fit purely to function as fire = chattel
- Light fittings attached by screws = chattel
D’Encourt v Gregory1866 - Argument that an item is a fixture if it is attached to the land and forms a part of an architectural design
Elitestone v Morris 1979 - It is possible for a chattel to become part of the land over time. For example, a mobile home resting on its own weight would retain its characteristic as a chattel if it was easy to remove. However, where a house is constructed in such a way that it cannot be removed at all, save by destruction, it has become a fixture as it is clearly intended to form part of the land
How to work out if a buyer is bound by rights of a property?
(a) What is the nature of the interest? i.e estate or interest
(b) Is the right legal or equitable?
(c) Has the right been protected?
Every property right (whether it is an estate or an interest) will either be legal or equitable.
Only certain property rights can ever be legal, but all property rights are capable of being
equitable.
The distinction is important because legal and equitable property rights are protected in
different ways.
A right will be legal if it:
(a) appears in ss 1(1) or 1(2) LPA 1925; and
(b) meets the necessary formalities.
Anything that falls outside of the list in ss 1(1) and (2) LPA 1925 can only be equitable – see s
1(3) LPA 1925. Equitable interests must also meet the necessary formalities
What are the two (maybe 3) types of estates and what do they mean and entail?
- Freehold (estate in fee simple absolute possession):
- Can inherit
- Lasts forever
- If no heir pass to crown
- Interests cannot be conditional or would only be equitable (e.g to Jess when she becomes a lawyer). Right to IMMEDIATE possession - Lease
- Exclusive possession for fixed period
- Exclude everyone inc landlord
- Fixed term or periodic - Commonhold
- Freehold over the flat or house but a group of commonholders manage the shared areas
What interests are capable of being legal.
- Easements and profits for a fixed term or forever;
- Rentcharge - only freehold, where owner pays periodic rent to a third party. Usually this is their only interest in the property. Must be forever or fixed period.
- Charges by way of legal mortgage;
- Statutory interests such as charge for inheritance tax (gov agency will be owner);
- Rights of entry (landlord’s right to forfeit lease if lease breached or rentcharge owners right to reclaim land if rentcharge not paid)
When are equitable rights someone times created?
What rights are only capable of being equitable?
What is a license
- by contract to create or transfer a legal estate or interest
- by trying to grant a legal estate or interest but failing to comply with the relevant formalities
- by grant of an estate or interest by a person who owns only an equitable right
- by grant of an estate or interest which can only exist in equity
- by express trust
- by implied trust.
Only be equitable:
* Beneficial interest under ANY type of trust
* Restrictive covenant
* Estate contract
Home rights do not create an itnerest in land! Creates a stat right od occupation. s 30 Family Law Act, right arises provding:
- legaally married of civil partners
- home intended to be marital home (or has been)
License = personal right, no interest in land. Does not bind successors in title. Can be revoked at any time.
Formalities for the creation or transfer if a legal estate or interest. General rule and exceptions.
Section 52(1) LPA 1925 provides that a deed is required to create or transfer a legal estate or
interest in land. This means that the estates and interests appearing respectively in s 1(1) and 1(2) LPA 1925 must be created by deed in order to be legal.
Deed formalities in LMPA 1989:
- In writing
- Clear on its face its a deed
- Signed
- Witnessed (by ONE witness)
- Delivered.
Exceptions:
- Parol leases can be oral but:
(a) lease for THREE YEARS OR LESS;
(b) immediate right to possess and enjoy land, so lease must take effect in possession;
(c) market rent
(d) no premium
Some easements do not need to be a deed but will be considered later.
Formalities for the contract to create or transfer rights in land.
All contracts for the creation or transfer of rights in land must comply with s 2 LPMPA 1989 in
order to be valid. The contract must:
- Be in writing
- Incorporate all expressly agreed terms in 1 doc (or where exchanged then in 2 docs)
- Signed by or on behalf of all parties.
The following transactions are examples of where the contract would need to comply with the
requirements of s 2 LPMPA 1989 in order to be valid:
* the sale of a freehold or lease;
* the grant of a lease;
* the creation of an option;
* the creation of an easement.
Any variation to a contract must also comply with the requirements of s 2 LPMPA 1989.
Once contracts are exchanged, the buyer has an equitable interest in the land (an estate
contract)
Types of equitable interests and their formalities:
- Restrictive cov = created by signed written doc
- Grant of lease or estate by someone with equitable right (will ony every be equitable) - in writing and signed
- Contract to create ot transfer legal estate or interest - (a) Valid contract complying with s 2 LMPA (b) clean hands (for specific performance).
Above is based on Walsh v Lonsdale
What is the doctrine in Walsh v Lonsdale? When will an equitable lease, easement and estate contract be made?
The parties had made a valid contract for a seven-year lease and the tenant had taken possession of the property.
The parties omitted to execute a deed in order to create a legal lease. The court recognised an equitable lease based on the existence of the contract and the availability of specificperformance (consider factors from previous slide). The decision was based on the equitable maxim of ‘equity regards as done that which ought to be done’.
In Coatsworth v Johnson [1886–90] All ER Rep 547 there was a valid contract for a lease of a farm but the lease was not completed by deed and therefore could not be legal. Coatsworth took possession of the farm but breached a term of the contract. The court would not recognise the equitable lease as a consequence of Coatsworth breaching the terms of the
contract and therefore not having clean hands.
Therefore, contract to create legal lease or legal easement will create the equivalent equitable right (i.e equitable lease / easement). However, a contract to transfer an existing legal estate (freehold or a lease) will create an
equitable right known as an estate contract.
In Parker v Taswell (1858) 119 ER 230 the parties had intended to grant a legal lease but the document had not been executed correctly and was not a deed. It therefore could not
create a legal lease. The document satisfied the requirements for a contract and specific performance was available, therefore the document created an equitable lease.
Interests under trusts need to be signed in writing (i.e epxress trusts) but NO FORMALITIES for implied trusts.
What approach should be taken to working out if an interest is legal or equitablet?
- What is the interest e.g lease, estate, easement
- Is the interest capable of being legal
- If yes does it comply with deed formalities or fall in an exemption. If not capable of being legal, does it comply with equitable formalities?
- If it is capable of being legal, but the wrong formalities have been used, will equity step in? Think ‘clean hands’
If equity doesn’t step in to save then only have a license.
When does the Trusts of Land and Appointments of Trustees Act 1996 create a trusts?
Where there is concurrent sharing, s 1 of TOLATA 1996 creates a trust of land. A trust of land will arise in the following situations:
* a landowner intentionally sets up a trust of their land by transferring title to the land
to trustees for the benefit of others (an express trust following the formalities in s 53
LPA 1925);
* a person acquires an interest in land owned by another due to their conduct (an implied
trust – see 2.4); or
* land is acquired by more than one owner jointly (co-ownership).
Explain a legal estate, who can be a trustee, max number and powers?
- LEgal estate cannot be severed or in unequal shares - must be joint tenancy
- Must be over 18 to be a trustee, try to convey land to a minor and you will be holding it on trust.
- Max trustees - 4 (will be first 4 named adults), no min but 2 best so can overreach
- Powers - power to sell, mortgage, absolute owner. Duty to consult benes of full ages who have an interest in possession (i.e only benes who are entitled to an interest immediately). The trustees must comply (as far as is consistent with the general interests of the trust) with the wishes of the beneficiaries or (in the case of a dispute) with the majority of them (according to the value of their combined interests). The duty to consult is only in so far as it is practicable to do so
First test for joint equity/tenants in common?
Are all four unities present? If so indicates a presence of joint tenancy
- Unity of possession - all have RIGHT to possession - both types of interest need this
- Unity of interest - must all have the exact same and identical rights - tenants in common can have unequal shares
- Unity of title - must all have acquired rights from the same document, such as a transfer or conveyance
- Unit of time - must have all acquired rights at the same time.
Missing unity of time, title or interest MAY suggest tenants in common. If have all four then next test.
What is the second test to see if joint tenants?
the second test: does the deed transferring the land to the co-owners contain an express
declaration?
An express declaration of trust (complying with the formalities in s 53(1) LPA 1925) is conclusive (Goodman v Gallant [1986] 2 WLR 236).
The document of transfer sets out how the property is to be held (regardless of the size of contribution made by any of the co-owners). Such a trust may be expressed in a set of facts as:
‘Transferred into their joint names as express beneficial joint tenants in equity’
‘Conveyed to them as express beneficial joint tenants in equity’
‘The transfer contained a declaration that all four owners were beneficial joint tenants’
All three statements mean that the property has been transferred to the co-owners as joint tenants in equity. An express declaration of trust is now strongly encouraged by Land Registry.
If declaration says joint tenants in equity, this will be the case even if they made unequal contributions to the purchase price.
Absence of express declaration, then go onto the third test.
What is the third test to see if joint tenants?
The third test: does the deed transferring the land to the co-owners contain words of severance?
By words of severance – this means any words in the document of transfer that indicate that the co-owners are to have distinct shares. For example:
‘I grant Greenacre to my children to be divided equally between them.’
‘To A and B in equal shares.’
‘Between A and B.’
‘Half to A and half to B.’
Where the conveyance or transfer does not contain an express declaration or words of
severance, we need to apply the fourth and last test. If it does then TiC.
What is the fourth test to see if joint tenants?
The fourth test: does equity presume a tenancy in common?
There is a presumption that the co-owners will be joint tenants in equity on the basis that equity follows the law – Stack v Dowden [2007] 2 AC 432 (HL). The legal estate is always held as a joint tenancy and it is, therefore, presumed that the equitable interest will also be a joint
tenancy. This presumption can be rebutted as follows:
- Property acquired for business use;
- Unequal contributons to the purchase price (unless a trust of the home in which case unequal contributions wouldn’t stop the presumption of joint equity)
- Post acquisition money management - trust of home strong favour in joint tenancy, rebutted on exceptiomal circumstances where one owner provided far greater share of finance for home e.g paying all mortgage payments and majority of outgoings.
Severance of joint tenancy in equity - how (formal severence).
- Severance must be inter vivos, ie during the lifetime of the co-owner. A will cannot effect
severance (Carr v Isard [2006] EWHC 2095 (Ch)). Although a will is written in the lifetime of the
testator, it only takes effect on death.
Severance can be effected by - formal severance by written notice or information severance
Written notice
- Need not be signed
- Unilateral
- Harris v Goddard must state want to sever immeditely - i.e I want to sever in future does not count
- Notice must be received on ALL other joint tenants or be deemed received - posted or handed.
Postal rules
If posted, reliance can be placed on the deeming provisions of s 196 LPA 1925. This provision
does not dictate methods of service, it is a method of proving service of notices. The relevant
subsection depends on the method used
Reg post:
If the notice is sent by registered or recorded letter, it is deemed to be sufficiently served if the
letter is not returned (via the post office) undelivered. So, if a joint tenant chooses to send the
notice via recorded letter, they can rely on the presumption set out in s 196(4) LPA 1925.
In Re 88 Berkeley Road [1971] 1 All ER 254 one joint tenant (X) sent notice of severance to
the other joint tenant (Y) via recorded delivery. X received and signed for the letter (in order
to prove notice) and died soon afterwards. Y, the recipient of the letter, stated that they had
never seen the letter.
The severance was effective as the letter had not been returned undelivered and was,
therefore, deemed to have been sufficiently served
Ordinary post:
Any notice is sufficiently served if it is left at the last known place of abode or business in the
UK of the person to be served.
In Kinch v Bullard [1998] 4 All ER 650 the property was owned by a married couple as joint
tenants in law and equity. The wife sent notice of severance via ordinary post. The postman
put the letter through the letter box. The wife subsequently picked up the letter and destroyed
it as she had changed her mind about severance. The husband died shortly afterwards.
Severence effected.
Informal severence?
Methods of severance were identified in Williams v Hensman (1861) I John & H 546:
- Acts operating on the joint tenant’s share - unilateral, sale, gift or mortgage of their interest. As its an equitable interest must follow formalities and by in wrting and signed. Contract to dispose (ie contract to transfer equitable lease) would sever if followed the formalities i.e all terms in contract in 1 doc, signed by all parties etc.
- Mutual agreement - implied or express, need valuable consideration but need not be carried thorugh (i,e I offer to sell my equitable interest to James for £700. Agreed but then change my mind and nothing happened. Severence affected - the agreementsupported by valuable consideration was enough). Oral is fine.
- Course of dealing - show through conduct. Need not be agreement.
In addition, severance can be effected by:
- bankruptcy;
- homicide (unlawful killing); and
- post-acquisition money management:
Where a family home is bought in the joint names of an unmarried couple who are both
responsible for any mortgage, but there is no express declaration of their beneficial interests:
(1) The starting point is that equity follows the law and they are joint tenants in law and in
equity.
(2) That presumption can be rebutted either by the parties showing that they had a
different common intention at the time of the acquisition or that they later formed the
common intention that their respective shares would change. The fact that the parties
had contributed to the acquisition of the home in unequal shares would not normally
be sufficient to rebut the presumption of a joint tenancy; however, the parties’ common
intentions may change over time producing an** ‘ambulatory constructive trust’.**
(3) Their common intention is to be deduced objectively from their conduct but, if it is not
possible to ascertain this by direct evidence or by inference, then their shares are to be
what the court considers fair, having regard to the whole course of dealing between them
in relation to the property.
(4) Each case will turn on its own facts. Financial contributions are relevant but there are
many other factors which may enable the court to decide what shares were either
intended or fair
When does a ruslting trust arise?
- Someone contributes to the purchase price (cannot be legal fees etc)
- No evidence this contribution was gift or loan
- the contribution must be of all or part of the purchase price at the date of acquisition (not
subsequent to it) i.e not legal fees.
When does a constructive trust arise?
Lord Bridge’s obiter comments in Lloyds Bank plc v Rosset [1991] 1 AC 107 provide a twostage test for the creation of a constructive trust. This can be created either by:
- Agreement & detrimental reliance; OR
- Conduct and direct financial contribution.
Agreement & detrimental reliance
1. EXPRESS discussions (not implied)
2. Agreement can be based on trick and deceit (seems unfair) - Eves v Eves [1975] 1 WLR 1338 the legal owner stated that the house could not be purchased jointly as his partner was less than 21 years of age or in Grant v Edwards [1986] Ch 638 where the legal owner stated that the house could not be purchased jointly as it would prejudice the divorce proceedings of his partner
3. Agreement can be at time or after
4. Must have relied on position and sufferent detriment or changed position:
(a) paid for improvements out of their money
(b) paying all household bills to allow the legal owner to pay mortgage
(c) working unpaid in owner’s business
DETRIMENT MUST NOT BE RELATED TO OTHER MOTIVE LIKE LOVE AND EFFECTION
eorge is the sole owner of 26 Railway Cuttings (‘the Property’). At the time of the purchase in 2017, George assured his girlfriend, Nicole, that the Property would be their ‘forever home’. Upon the purchase of the Property, Nicole gave up her rented flat and since then has paid half of the mortgage payments for the Property.
CONDUCT + FINANCIAL CONTRIBUTION
- No express agreement so Court looks at conduct
- ‘both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust’,
- The required conduct is payment towards the purchase price initially or payment of the
mortgage payments by the non-owning party. This direct financial contribution then gives rise
to a common intention that the property should be shared beneficially
ANYTHING LESS THAN DIRECT FINANCIAL CONT NOT ENOUGH
Does the case of *Jones v Kernott *cast doubt on the 2 stage test for a costructive trust?
This more holistic approach was further developed in Jones v Kernott [2011] UKSC 53 with
helpful guidance in relation to trusts of the family home where the legal estate is in one name
as follows:
(a) Was it intended that the non-owning party have any beneficial interest in the property?
(b) If so, the parties’ common intention must be deduced objectively from their conduct.
(c) There is no presumption of joint beneficial ownership (ie holding in equal ‘shares’).
(d) If there is no evidence as to what shares were intended, the court considers what is
fair having regard to the whole course of dealing between them in relation to the
property.
(e) Each case will turn on its own facts. Financial contributions are relevant but there are
many other factors which may enable the court to decide what shares were intended
or fair.
(f) Resulting trusts are not appropriate to ascertainment of beneficial interests in a family
home. Constructive trusts are preferred by the courts.
The Supreme Court has not yet formally overturned the need to create a constructive trust
using the two-stage test set out in Lloyds Bank v Rosset, save for indicating that the parties’
common intention to create a trust has to be deduced objectively from their conduct. The
safest approach is, therefore, to apply the two-stage test in Lloyds Bank v Rosset to identify
whether a constructive trust has been created. If so, the more flexible approach in Stack
v Dowden and Jones v Kernott can be applied to calculate the respective interests of the
beneficial owners in the family home.
Options for Court upon s14 application?
- refuse sale - likely if purpose of acquisition can be fulfilled still
- Order a sale - if purpose for property has fialed more likely (e.g if bought for business and business failed)
- Refuse sale and make order re occupation 0 e.g relationship break down due to violence of one to other. a sale may be refused but the person in occupation may be ordered to
pay rent to the person excluded from occupation (by their violence). This is very rare. - VERY EXCEPTIONAL circumstances, partition the property.
To sell co owned land all trustees need to execute the deed transferring the legal estate. How do you resolve disputes when the co-owners fall out?
2 parts, apply under s14 TOLATA 1996 and factors for court to consider under s15
s14
1. Trustee or anyone with interest can apply to the Court for an order
2. Court has a WIDE discretion to make an order:
(a) relating to trustees exercising any of their functions; or
(b) declaring the nature or extent of a parties interest in property.
What sort of disputes for s14?:
- size of coowners interests if no declaration of trust
- occupation of trust land
- pushing through transactions with consent of all the trustees
- should co-owned land be sold
Factors for court to consider under s15:
(a) the intentions of the person or persons (if any) who created the trust;
(b) the purposes for which the property subject to the trust is held (Where the purpose of the trust is still capable of being substantially fulfilled, particularly where the property is a family home, the court is likely to refuse and order the sale. However, where a relationship has broken down irretrievably and there are no minor children then the court is more likely to order a sale (Jones v Challenger [1961] 1 QB 176).
(c) the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home; and
(d) the interests of any secured creditor of any beneficiary (It is now settled that the interests of the mortgagee will take priority over the interests of others in the absence of exceptional circumstances. For example, the welfare of a child aged 17 was given very little weight as against the needs of a secured creditor. The court will also give consideration to the fact that if the property were not sold, the mortgage debt would continue to rise at the risk of wiping out the entire value of the property, or making it very difficult for the borrower to repay the debt.)
(e) circumstances and wishes of any beneficiaries of full age and entitled to an interest in
possession in property subject to the trust or (in the case of dispute) of the majority (according
to the value of their combined interests).’
NOT EXHAUSTIVE
weight will always be given to a secured creditor against the needs of a child or an ill co-owner
Court considers: (1) intentions of people hwo made trust (b) purpose for why the property is subject to a trust (c) interests of minoors who occupy or might reasonably be expected to (d) interestsof secured creditors - lenders (e) beneficiaries of full age and entitled to an interest in possession. Majority.
How to create an easement
- Can be legal if for fixed period or forever
- Comply with deed requirments
- Can have equitable easement if in writing, signed by all parties, all relevant terms in 1 doc, clean hands
Are there any new types of easements that can be created?
- Generally only if they are analogous to OG easements, such as right to erect a satllite fish is analougous to erecting a sign.
4 essential characteristics must be in place to be a new easement - Re Ellenborough Park test:
- Must be dominant and servient tenement (profits can be ‘created in gross’ with only a servient tenement. Easements NEED dominant as well)
- Easement must serve the dominant tenement (must be connected with normal enjoyment of dominant land e.g land in Northumberland cannot accomodate land in Kent. But need not be joined! Can be seperated by another parcel of land. Need to be sufficiently close. Right must benefit land as well as owner:
(a) Does the right improve the marketability of the land; and/or
(b) Would a future owner see it as a benefit?)
Examples:
- right to use garden benefitted land and was easement
- right to put pleasure boats on a canal was not - just a business venture and no connecting to ordinary enjoyment of land
- pub sign place on grounds of property and gave directions to pub on dominant land - found to be easement as connected to manner in which land was being used, helped public find pub and supported business.
- Must not both be owned and occupied by the same person - principle of diversity is satisfied with landlord and tenant - quasi-easements. Converted to full easement on sale of part of the land.
- Easement must be capable of forming the subject matter of the grant of the deed i.e must be capable of precise definiton. There must be a capable grantor. This means the person who grants the right must have the power to do so. There must also be a capable grantee. For example, it would not be possible to grant rights to the inhabitants of the village, since they are a vague and fluctuating body.
Four main points for capable of forming subject matter of the grant:
(a) Capable of exact definiton (general flow of air to timber drying shed) is too vague. No right of light generally - only through a defined aperture. Cannot be a right to a view (law does not give an action for such thing of delight). Sometimes can be for delight like a park in the Ellen case. Supreme Court case - The court emphasised that the easement must have all the essential characteristics set out in Re Ellenborough Park. As the use of the dominant land was itself recreational, being a timeshare property, the condition that the easement must accommodate the dominant tenement was satisfied.
(b) No expenditure by servient owner. E.g right of way, owner of dominant can carry out works but servient does not have to. It is not a positive cov after all!! exception: easement of fencing in Crow v Wood: right to require the owner of adjoining land to keep the boundary fence in
repair. The principal appears to be limited to a rural setting where it is of great importance to
maintain stock proof fences. Limited to rural area where cows could get out!
(c) Not so extensive as to amount too joint possession - look at amout of time taken and amount of space. Grisby case, claimed right to store stuff in neighbours cellar,but it was a small space and extensive usage. Defendant filled the cellar so now the owner couldn’t use i! Question of fact and dgree - does it deprive owner of whole beenfit? Is there a limit on amount and time? More likely to be an easement. Easement of parking - no if leaves owner without use of parking! No reasonable use of the land left?
(d) Law cautious about new negative easements - positive easement is benefit of easement performing some activity like right of way, of drainage or erect sign. Negative is prevents servient owner from doing something. Only recognise following in law:
1. Right of light
2. Right of air
3. Right of support
NOT TV RECEPTION! Cautious as may stop owner enjoying use of their land.
Right of light - Once a right to light has been established, it must then be proved that the right has been infringed. It must be demonstrated that the amount of light remaining has been reduced to
a level below that which ‘is required for the ordinary purposes of inhabitancy or business of
the tenement according to the ordinary notions of mankind’. I.e use of light dropped below use enoguh for ordinary notions of mankind. Depends on nature of property.
How can easements be created?
- Express grant/reservation (executes deed for grant, reserve is where seller retains rights over land they are selling)
- Implied by necessity
- Implied by common intention
- Wheeldon v Burrows
- s62 LPA 25
- Prescription
Easements implied by necessity?
- Applies to grants and reservations
- Land locked - not enough for other way to be inconvenient
- EXTREMELY limited
- Union Lighterage v London Graving Dock Company [1902]:
In my opinion, an easement of necessity means an easement without which the
property retained cannot be used at all, and not merely necessary to the reasonable
enjoyment of the property.
- can only be used for purposes for which dominant land was being used at time necessity arose
NO MEANS OF ACCESS ELSEWHERE
Easements implied by common intention?
- Grants & reservations
- Land conveyed by reasons known to granter, easement over any element essential for purpose to be carried out is implied
- Wong v Beaumont:
The lease required the let property to be used as a restaurant and included an obligation on the tenant that no noxious smells would be emitted by the restaurant. The only way to comply with this obligation was to build a ventilation duct through the remaining part of the building owned by Beaumont Property Trust. An easement was implied as the ventilation shaft was needed to ensure that the obligation in the lease could be complied with.
What to look for in a set of facts:
A common purpose known to the parties. The right claimed is needed in order for the
common purpose to be fulfilled.
Easements - wheeldon v burrows
ONLY GRANTS - no application to profits. Pro buyer!
Converting quasi-easements to easements:
1. Quasi easement in existence prior to sale
2. Right used must be continuous and apparent - think can see the mark of the path, drains etc
3. Right must be necessary for the reasonable enjoyment of time - not as stringent as necessity, can be an alernative path but needs to be better and not equally as convinient. I.e if other path but it is dangerous so alternative needed for reasonable enjoyment.
4. Be IN USE AT TIME OF SALE
THis only has the effect of THE SELLER GRANTING RIGHTS TO THE BUYER! The seller cannot reserve rights as they have the power.
CONTRACT IN EQUITY WILL SUFFICE!
s62 LPA 1925 for implied easement?
- parolThe section operates to pass automatically to a buyer all existing rights, without the necessity of formal words in the conveyance. Case law extends to scope. Uplifting of license at the time of a lease renewal into an easment. Case: Wright v Macadam 1949::
Mr MacAdam (‘M’) let a flat to Mrs Wright (‘W’) for one week. She continued in occupation
and subsequently M gave her permission to store her coal in his coal shed. M then granted a new tenancy to W. No reference was made to the coal shed. M then demanded W should pay a weekly amount for the use of the coal shed. W refused. The court found that when the lease was renewed, there was implied into the renewed lease an easement to store coal in the coal shed. All that was required was the existence of the right at the time the lease was renewed; s 62 automatically implied an easement of storage. The effect was to convert or uplift the permission/licence given by M into a full legal easement.
The conditions of s62 are:
- Need a conveyance - written document. Creating or transferring legal estate. Can be a mortgage or lease (inc a short written lease NOT in a deed - parol) DOES NOT INCLUDE A CONTRACT FOR SALE.
- Diversity of occupation on two parts of land - no need for the right to be continuous and apparent. This condition is not needed if:
(A) Easement of light being converted; or
(B) Where the rights are continuous and apparent e.g track. - Existing priv at date of conveyance. Not future right.
- Must be capable of being easement orporift - consider the Ellen conditions above (4). s62 will not cure a defective easement. s62 applies to profits.
How many types of prescription and what do you need to show for all of them?
3 types:
1. Common law
2. Doctrine of lost modern grant
3. Prescription Act.
Whichever method is relied on it will be necessary to show that the right has been exercised
by or on behalf of a fee simple (freehold) owner against a fee simple (freehold) owner:
- continuously; and (The user can be by a number of freehold owners in succession and may be intermittent in nature. In Diment v N H Foot [1974] 2 AER 785 use for six to ten occasions over a 35-year period qualified as continuous use)
- as of right (without force [including removal of obstructions or ignoring owners protests], secrecy [not be hidden - reasonable person. only done at night?] or permission [any payment indicates permission.toleration does not ocunt.]).
PRESCRIPTIONONLY RELATES TO FREEHOLDERS AND NOT LEASES!!!!!!!!!!!
Perscription at common law?
The grant of an easement is presumed if it has been enjoyed continuously as of right since time immemorial, since 1189. It is presumed that a user for 20 years or more is proof of use
since 1189 but this presumption can be rebutted by showing that at some time since 1189:
- the right was not exercised
- the right could not have been exercised
- the dominant and servient tenement were vested in the same owner (unity of seisin).
The presumption is, therefore, fairly simple to rebut
show: right not exercised, right could not have been exercised, land were vested in same owner at some point since 1189
Prescription of lost modern grant and Prescription act 1832?
Prescription of modern lost grant.
The grant of an easement is presumed if it has been enjoyed continuously as of right for
20 years or more on the basis that there is a presumption that there was a grant of the right
since 1189 (time immemorial) but that the grant has been lost.
LAST RESORT. i.e where:
- The dominent and servient tenements in common ownership since 1189; or
- There is a gap exceeding 1 year.
Prescription under Prescription ACt 1832
If the dominant owner can show user as of right for 20 years (30 years for profits) then they will obtain a prescriptive easement even though the user clearly commenced sometime after
1189 (s 2 Prescription Act 1832).
Must prove uninterrupted enjoyment - no breaks exceeding 1 year. Count back 20 years from the date of the action.
Right cannot be exercised with force, secrecy or permission.
Covenants, what types, can they be legal, formalities?
- Covenant is a promise to do or not do something (difference depends on positive or negative
covenant) - Usually in order to enhance the value or amenity of the land retained by the seller
- Covenants can’t be legal (not in s1(2) of LPA 1925)
- Equitable by interest - must be signed and in writing (s53(1) LPA 1925)
- Can create covenant by contract but usually. Deed as tend to be created when part of land is sold (and usually included on the transfer)
- Positive covenant = have to actively do something
- Negative/restrictive = stops you doing something
- Positive or negative depending on substance of clauses and NOT the wording
Does the burden of a covenant run in law? Can the burden run in equity?
- Rules of assignment mean only the benefit of a contract can be assigned and not an obligation,
therefore, obligations of a coventor cannot be passed at common law down to a successor in title i.e legally a covenant can’t be passed in law. Makes sense as covenants cannot be legal. Doesn’t matter if restrictive or positive. - However burden of restrictive cov can run in equity but a positive cov cannot
Tulk v Moxhay, burden of restrictive covenants can be passed in equity
1. only negative covs
- The covenant, when made, must have been made for the purpose of benefitting dominany land. In the London City Council case, all the land was sold off and none retained when cov was made. Without any dominant land the covenant couldn’t run with the land (be careful as often covs are created when land is sold so the dominant land must be retained. Think of case where counsel sold land subject to a cov not to build, cannot enforce against successor as did not retain dominant land)
- Must TOUCH AND CONCERN the dominent land. TEST (P & A Swift):
(a) Not beneficial to owner when the dominant land is sold
(b) it must effect the value, nature or quality of the dominant land
(c) must not be personal and given to one specific person
Consider distance - Kelly v Barnett - 5 miles too much. On same street was fine.
- Cov must have been made with the INTENTION to BURDEN the servient land:
(A) - EXPRESS INTENTION - in document;
(B) IMPLIED - s79 LPA, implied unless contrary intetion is expressed, to bind successors - Servient owner must have had notice to be bound!!! (Depends if reg or unreg - if reg then in charges register, if unreg then Land Charge D(ii).
The burden of a positive covenant does no run with the land, how do you enforce it?
- Create a lease
Positive and negative covenants are binding in equity on successfor in title to a tenant. - Indemnity covenant - chain of indemnity - only good as weakest link - sue previous person in chain
- Halsall v Brizell (mutual benefit and burden):
- Doctrine says if a person wants to sue a service/facility that benefits heir land they must comply
with obligations - Example - if want to use a facility you may have to contribute to upkeep
- 2 pre-conditions to this from Thamesmead Town Ltd v Allotey 2000:
1. The burden must be linked to the benefit;
2. The covenator’s successors in title must have the option to opt out or accept the enefit and related burden. - This isn’t a direct method of enforcement but allows the covenantee to stop allowing the been
until burden has been fulfilled.
