Tricky Concepts in Land Flashcards
Which interests can be legal (or equitable)?
- Mortgages
- Easements granted for a term equivalent to a freehold or leasehold estate (i.e. forever or for a certain term.)
- Rights of entry
Which interests can ONLY be equitable?
The equitable interests you will encounter are:
- Freehold covenants
- Estate contracts
- Interests in a trust of land
- Easements granted for an uncertain term
What are the formalities for a valid estate contract?
- in writing;
- contain all the agreed terms; and
- be signed by both parties
What are the formalities for a deed?
- intended as a deed;
- validly executed by the seller; and
- delivered, which is done by dating the document.
What type of document is needed to transfer land?
Deed
What are the 4 categories of proprietary right for easements?
Express legal
Implied legal
Express Equitable
Implied Equitable
What are the formalities for an express legal easement?
Created by deed
- clearly intended to be deed
- delivered (dated)
- signed by grantor and witnessed
Registered (if land is also)
What happens if you don’t meet the formalities for an express legal easement?
Could be an equitable interest as an estate contract
What type of easement is described as ‘inherently equitable’, and what are the formalities
Those for uncertain terms cause they can never be legal
Made in writing
Signed by grantor
What are the formalities for a failed express legal easement to become an estate contract?
Includes all expressly agreed terms
In writing
Signed by both parties
What happens if the formalities aren’t complied with for an inherently equitable easement (means one with an uncertain term)
No valid easement exists
What happens if a failed express legal easement does not meet the formalities for an estate contract?
There is no valid easement created
What is the difference in status between implied legal easements and implied equitable easements
Implied legal: easement is implied into a legal document and takes the status of that document
Equitable: Implied into a contract or equitable lease, then its implied
‘takes the status of the document it is implied into’
What is the process to determine whether something is a license or easement?
- Does it pass Ellenborough Park
- Is it disqualified?
- Was it acquired expressly, impliedly or by prescription
What are the 4 criteria in Ellenborough Park?
Dominant and servient tenement
Right must accommodate dominant tenement
Must be diversity of ownership
Right must lie in grant
What 3 criteria mean that a right ‘lies in grant’
Capable grantor to grantee
Capable of reasonably exact description
Judicially recognised
What rights of way have been judicially recognised as easements?
Of way
Of drainage/pipelines
Of support
Using sporting/leisure facilities
Use land for recreation
Storage
Parking
What are the disqualifying factors for being an easement?
Amounting to exclusive possession
Additional expenditure
Permission required each use
What are the 2 tests for exclusive possession?
Ouster principle (binding law)
Possession and control
Are the courts more likely to favour the person claiming the easement or defending against it?
Claiming
What are the 4 ways to impliedly acquire an easement?
Necessity
Common intention
Wheeldon v Burrows
LPA 1925 s62
When can an easement be implied by necessity?
When it is absolutely essential to make any use of the dominant land
Basically only landlocked, even access by boat would negate necessity
When will common intention be able to create an implied easement?
Land was sold/leased to another for a particular purpose
Purpose cannot be fulfilled without the easement
When can you acquire an easement impliedly through Wheeldon v Burrows?
Has to be an easement claiming to have been granted (NOT RESERVED)
Was a quasi-easement before land was divided
Quasi-easement was continuous and transparent
Quasi was necessary for reasonable enjoyment
Quasi was in use by common owner at the date of transfer
Why has LPA 1925 s62 become usable in similar circumstances as Wheeldon?
Because the prior diversity of occupation is no longer 100% necessary and it can now happen on a NEW sale like Wheeldon
Advantage is that claimants don’t have to show ‘reasonable use’ so it is easier
Wheeldon is still used if they need to imply an easement into an estate contract, because LPA 62 CAN’T EVER BE EQUITABLE ONLY LEGAL
What are the s62 requirements to successfully argue an implied legal easement?
Is a grant
Prior diversity
Informal permission/license existed
Then there was a conveyance
To use LPA 62 without prior diversity of occupation, what are the requirements?
Quasi easement
Continuous/apparent
Recent/regular exercise of the right
Physical evidence of the right
When is an implied legal easements over registered land enforceable against a new servient owner?
Actual knowledge of new owner
Obvious on reasonably careful inspection of servient land
Exercised within a year before transfer of servient land
When are express equitable easements over registered enforceable against new servient owner?
Always against grantor
Must be protected against new servient owners
- notice in charges register
Otherwise won’t be binding on purchaser for value
When are express equitable easements over unregistered land enforceable against new servient owner?
Protected by Class D(iii) Land Charge
If not, won’t be binding on a purchaser for value
When are implied equitable easements enforceable under registered and unregistered land for new servient owner?
They have to follow the same rules as express equitable easements
- notice in charges register
- Class D(iii) Land Charge
**vulnerable to defeat because nobody ever registers them
When are easements enforceable between the OG parties?
Always, there is only a problem when there is a sale
When are express legal easements enforceable against a new servient owner of unregistered land?
Legal interests bind the world
When are express legal easements enforceable against a new servient owner?
They will always be, because to be legal they have to have been registered
When are implied legal easements over unregistered land enforceable?
Legal interests bind the world
Will be an overriding interest on first registration
What must happen for a covenant to pass in equity?
Both the benefit and burden have to pass with equity rules
What must happen for a covenant to pass under common law?
Burden and benefit must pass with common law rules
What is the general rule to covenants passing under common law?
Burden cannot pass to a successor
How does burden pass in equity?
Rule in Tulk v Moxhay:
Covenant must be restrictive
Must accommodate the dominant tenement
Must be intention for the burden of the covenant to run (express or implied)
Must be notice of the covenant
Under Tulk v Moxhay, to pass the burden of a covenant under equity, what 3 aspects make up the criteria that the covenant must accommodate the dominant tenement?
- Covenantee and successor must hold an interest in the land at the time of creation (covenantee) and enforcement (successor)
- Covenant must touch and concern the land
- Dominant and servient land must be near each other
How can there be proper notice of the covenant to satisfy Tulk v Moxhay?
Registered land: notice in charges
Unregistered: class D land charge
Can you mix the common law and equitable rules for passing covenants?
No – both benefit and burden must pass under 1 framework
How does the benefit pass in equity? (2 criteria)
Covenant touches and concerns land
Benefit passes by:
- annexation (express/statutory)
- assignment
- building scheme
How does express annexation happen, in order to pass a covenant benefit at equity?
Words of covenant make clear that benefit is intended to become part of the dominant land
When will statutory annexation apply to make the benefit of a covenant pass in equity?
Unless expressly excluded in the OG wording, the benefit will pass (so long as it also touches and concerns the land)
How does assignment occur to pass the benefit of a covenant at equity?
Each time the land is sold, the covenant itself is expressly transferred down the chain
When will a building scheme be able to operate to pass the benefit of a covenant in equity?
All buyers from same seller
Seller divided estate into plots
Covenants were intended to benefit all plots
Each buyer buys understanding that the covenants are intended to benefit all plots
In common law, since the burden can’t really pass, how is the covenant enforceable?
Against the OG covenantor always, just not the successor
Indemnity chain
What set of rules can restrictive and positive covenants pass under respectively?
Restrictive: Both sets
Positive: only common law
What is the common law rule exception that the burden of a covenant does not pass?
Doctrine of mutual benefit and burden from Halsall and Brizell
How does the doctrine of mutual benefit and burden from Halsall and Brizell, operate?
When the burden is connected to the benefit
E.G., right to park, but you have to keep the parking spot free of debris
What 3 conditions must exist for Halsall/Brizell to operate to pass the burden of a covenant at common-law?
Clear link between burden and benefit
Genuine choice as to whether to take the benefit
Benefit and burden were conferred in the same transaction
In what 2 ways can the benefit of a covenant pass at common law?
Express and implied assignment
What is the procedure to expressly assign the benefit of a covenant at common law?
Assign in writing
Give the covenantor notice
What are the conditions to impliedly pass the benefit of a covenant at common law?
Touch and concern the land
Intention that the benefit should run with the dominant land (will exist unless was expressly excluded)
OG covenantee had a legal estate in the dominant land
Successor covenantee must hold a legal estate in the dominant land
