land pt 2 Flashcards
Covenants- step 1
- who is the covenantor and the covenantee?
- which one is the burdened land and which is benefitted?
- mention covenants are enforceable by contract
Cov running of the benefit- common law
- 4 conditions
- must touch and concern the land- Smith and Snipes Hall Farm
- must be an intention that the benefit should run
- (express intention- “successors in title”, implied intention- s78 LPA)
- at the time of the covenant the covenantee must have held a legal estate in the land
- the person claiming the covenant must derive the title from under the original covenantee
smith and snipes hall farm
must touch and concern the land
Cov running of the benefit- equity
- express annexation - needs to say “for the benefit of named land”- rogers v hosegood
- implied annexation - mention but dont use
- statutory annexation- federated homes case
- express assignment- benefit can be assigned each time the dominant tenement is sold
- by scheme of assignment
federated homes case
- lawyer argued s78 LPA had the effect of automatically annexing the benefit to land IF
- Cov touches and concerns the land
- land must be identifiable- crest v Nicholson
- must be no contrary intention- roake v chadha
crest v nicholson
land must be identifiable
roake v chadha
must be no contrary intention
running of the burden- common law
- the burden cannot pass to successors- austerberry v corp of oldham
- 3 devices have evolved and can be used in certain circs
- leasing instead of selling freehold (relying on enforceability of covs between landlord and tenant)
- by a chain of indemnity contracts (always relevant if there is a pos Cov)
- doctrine of mutual benefit and burden (Halsall v Brizell)
austerberry v corp of oldham
burden cannot pass to successors
halsall v brizell
someone who wishes to take advantage of a service must comply with corresponding obligation- doctrine of mutual benefit and burden
running of the burden- equity
- tulk v moxhay- 4 requirements
- Cov must be RESTRICTIVE in substance
- covenantee must at the time of the creation of the covenant have owned land for protection of which the Cov was made- London v Allen
- burden of the Cov must have been INTENDED to run with the covenantors land (s79 permits the parties to exclude the effect of this section by expressing contrary intention)
- owner of the servient tenement must have NOTICE of the cov for it to bind him
London v Allen
covenantee must at the time of the creation of the Cov have owned land for protection of which the Cov is made
Gafford v graham
inconsistent usage discharges the restrictive Cov
releasing/ discharging restrictive covs
- unity of seisin (if the benefitted and burdened land is owned by one person, the covs are extinguished)
- inconsistent usage (gafford v graham)
- deed of release
- discharge by the lands chamber of upper tribunals (s84 LPA- applies to restrictive only)
WHAT TO MENTION
Briefly consider the position at common law but show awareness that as the question requires discussion of the running of the burden in equity it will be necessary to “match” this by discussing running of the benefit in equity as well.
what is an easement?
a right benefitting a piece of land (dominant tenement) that is enjoyed over land owned by someone else (servient tenement)
is it a legal easement?
s1(2) LPA 1925
- is capable of subsisting at law (legal interest)
- to be legal it must be created—
- by deed (expressly or impliedly)
- and for an interest equivalent to freehold or leasehold
is the right capable of existing as an easement?
- re ellenborough park
- 4 criteria
- there must be a dominant and servient tenement (peacock v custins)
- the easement must accommodate the dominant tenement (Pugh v savage)
- dom and serv tenements must not be owned and occupied by the same person
- the easement must be capable of forming the subject matter of the grant (must be capable of being granted by deed) —- 3 main requirements for this
peacock v custins
must be a dominant and servient tenement
Pugh v savage
easement must accommodate the dominant tenement
3 main requirement for an easement to be capable of being granted by deed
- right claimed must be sufficiently definite
- there must be a capable grantor and grantee (mental cap/age)
- the right must be within the general nature of rights capable of being granted as easements (4 sub criteria for that)
sub criteria to determine whether the right is capable of being granted as an easement
- an easement cannot impose a duty (regis prop v redman)
- cannot involve taking away part of the land (except water)- race v ward
- only neg easements recognised at law are light, air and support
- cannot give exclusive, joint, or substantially permanent possession of the servient land (Batchelor v marlow, wright v macadam, grigsby v Melville)
regis prop v redman
an easement cannot impose a duty
race v ward
cannot involve taking away part of the land (Except water)
batchelor v marlow
- car parked from 8-6:30, mon to fri
- left appellant with no reasonable enjoyment of land
- not an easement