Экзамен зачет учебный год 2023 / Dixon, Modern Land Law

Modern Land Law

easements and profits in similar fashion to that obtaining for covenants; the acceptance that an easement could still exist where the dominant and servient land was owned by the same person provided that benefit and burden of the easement were registered against the respective titles; and the possibility that the rules on implied creation might be amalgamated and replaced by a single rule based on what is necessary for the reasonable use of the land. There are no proposals to change the essential definition of easements, although the need for the right to be clearly defined and not to involve unrestricted use of the servient land could be made statutory.

364

SUMMARY OF CHAPTER 7

THE LAW OF EASEMENTS

The essential characteristics of an easement

The traditional criteria for determining whether a right amounts to an easement are found in Re Ellenborough Park (1956):

1There must be a dominant and a servient tenement (easements cannot exist in gross).

2The dominant and servient tenements must be owned or occupied by different persons.

3The alleged easement must accommodate (i.e. benefit) the dominant tenement, meaning that the servient tenement must be sufficiently proximate (i.e. near) to the dominant tenement; the alleged easement must not confer a purely personal advantage on the owner of the dominant tenement; the alleged easement must not confer a purely ‘recreational use’ on the dominant tenemen.

4The alleged easement must ‘be capable of forming the subject matter of a grant’, meaning that an easement cannot exist unless there is a capable grantor; an easement cannot exist unless there is a capable grantee; an easement cannot exist unless the right is sufficiently definite; the right must be within the general nature of rights recognised as easements.

5Public policy may also be relevant, though is not mentioned in

Re Ellenborough Park (1956).

Legal and equitable easements: formalities

An easement can qualify as a legal interest only if it is held as an adjunct to a freehold or leasehold estate and if it is created by statute, by prescription or by deed (unregistered land) or registered disposition (registered land).

Easements held for less than a freehold or leasehold must be equitable. Even easements held for these estates will be equitable if not created properly (or registered appropriately under the LRA 2002 on express creation). In that event, the easement may be equitable, provided it is embodied in a written contract or instrument that equity regards as specifically enforceable or it arises orally through proprietary estoppel.

365

Modern Land Law

The significance of the distinction between legal and equitable easements in practice: third parties

In registered land, the benefit of an easement becomes part of the dominant tenement and automatically passes to a purchaser, whether legal or equitable. The burden of a legal easement in registered land currently will either be registered against the title of the servient land or be an overriding interest under Schedules 1 and 3 of the LRA 2002, depending on when the easement came into existence and whether its expressly or impliedly created. In order for an equitable easement to bind a purchaser of the servient land, the easement must be registered by means of a Notice.

In unregistered land, the benefit of an easement becomes part of the dominant tenement and automatically passes to a purchaser, whether legal or equitable. The burden of a legal easement in unregistered land will ‘bind the whole world’. The burden of an equitable easement in unregistered land must be registered as a class D(iii) land charge under the LCA 1972 in order to bind a purchaser, save that estoppel easements bind according to the doctrine of notice.

The express creation of easements

An easement may be expressly granted by the potential servient owner to the potential dominant owner; for example, where the servient and dominant tenements are already in separate ownership and a grant is made, or where land is owned by a potential servient owner, and he then sells or leases a piece of that land to another and includes an express grant in the sale.

An easement may be expressly reserved by the potential dominant owner when that owner sells or leases a piece of that land to another and includes in that sale a reservation of an easement for themselves.

Note

The easement is legal or equitable depending on the character of the document in which it is contained. A legal conveyance creates a legal easement and transfer of an equitable estate creates an equitable easement.

The implied creation of easements

Necessity

An easement may be impliedly granted, and occasionally impliedly reserved, because of necessity, as where the land sold (grant) or land retained (reservation) would be useless without the existence of an easement in its favour.

366

Summary of Chapter 7

Common intention

An easement may be impliedly incorporated in a sale of land either in favour of the purchaser (grant) or exceptionally in favour of the seller (reservation) if this is required to give effect to the common intention of the parties.

Wheeldon v. Burrows (grant only)

Where a person transfers part of their land to another, that transfer impliedly includes the grant of all rights in the nature of easements (called ‘quasieasements’) which the seller enjoyed and used prior to the transfer for the benefit of the part transferred, providing that those rights are either ‘continuous and apparent’ or ‘reasonably necessary for the enjoyment of’ the part transferred.

Implied under section 62 of the Law of Property Act 1925 (grant only)

If a landowner has two or more plots of land and then conveys, by deed, one of those plots to a purchaser, the purchaser will be granted, by section 62 of the LPA 1925, all of those rights that were previously enjoyed with the land. This is so even if before the sale the ‘rights’ were enjoyed purely by permission and not as of right. Section 62 applies only to conveyance of a legal estate.

Note

In cases of implied creation, the easement is legal or equitable depending on the character of the document into which it is implied.

Easements by prescription

Prescription occurs when the owner of what will be the dominant tenement establishes long use of a ‘right’ over what will be the servient land. If, then, the ‘right’ so used is inherently capable of being an easement, the long use can mature into an easement proper. All easements created in this fashion will be legal. The period for which the use must be established will vary from case to case, depending on which of the three ‘methods’ of prescription is used.

General conditions for obtaining an easement by prescription

●Easements of prescription lie in fee simple only. There can be no easement by prescription in favour of, or against, a leaseholder or an estate that exists in equity only, such as a life interest. So, the long use

367

Modern Land Law

must be by a fee simple owner of the dominant tenement and it must be against a fee simple owner of the servient tenement. It is impossible for a tenant to claim a prescriptive easement against his own landlord and vice versa (or against another tenant). These rules have been modified for claims made under the Prescription Act 1832.

●The use must be ‘of right’. The long use must be nec clam (without secrecy), nec vi (without force) and nec precario (without permission).

●The use must be in the character of an easement, as satisfying the criteria of Re Ellenborough Park (1956).

Methods of establishing an easement by prescription

For all ‘methods’ of establishing an easement by prescription, the claimant must establish first that the use has been ‘continuous’ throughout the relevant period. The length of the required period varies with each method:

●Prescription at common law. The use must have occurred since before ‘legal memory’, that being before 1189. Use for 20 years raises a presumption that use commenced before 1189, but the claim can be defeated by any evidence that the use could not, in fact, have started before then. Such claims hardly ever succeed.

●Prescription at common law – lost modern grant. The law assumes that 20 years’ use of the right is conclusive evidence of a grant of the easement being made by the servient owner. This means that

20 years’ continuous use by the owner of the dominant tenement is sufficient to establish an easement by prescription, even if the servient owner produces evidence that no grant had ever been made

– which of course is true.

●Prescription Act 1832. For all easements – except easements of light – a period of 20 years’ use is sufficient to establish a prescriptive claim, provided that the ‘right’ was enjoyed ‘without interruption’ for that period. Alternatively, 40 years’ use without interruption ensures that the right is ‘absolute and indefeasible’, unless exercised with the consent of the servient owner. For easements of light, a period of

20 years’ use ‘without interruption’ becomes ‘absolute and indefeasible’, unless the servient owner consents in writing or by deed.

The extinguishment of easements

This can occur in a variety of ways. For example, the dominant and servient land may come into the ownership and possession of the same person; the dominant owner may ‘release’ the easement, expressly or impliedly through conduct; or the easement may be terminated by Act of Parliament.

368

Summary of Chapter 7

Profits à prendre

A ‘profit’ is a proprietary right to enter upon another’s land and take for oneself one of the ‘profits’ of the land. Profits may be legal or equitable. With the possible exception of the rule in Wheeldon v. Burrows (1879), profits may be created in the same ways as easements. Note, however, that profits may exist ‘in gross’; that is, they may exist over servient land even if the person entitled to the benefit owns no land himself. Examples are the profit of piscary (to take fish), the profit of turbary (to cut turf) and the profit of estovers (to cut wood). Under the LRA 2002, legal profits are capable of being registered with their own title.

369

CHAPTER 8

FREEHOLD COVENANTS

The law concerning covenants made between freeholders (‘freehold covenants’) represents yet another way by which one landowner may control or affect the use of neighbouring land.1 In some respects, the principles discussed below are similar to those seen in respect of leasehold covenants (Chapter 6) and easements (Chapter 7), in that a binding freehold covenant entails both a benefit and a burden held in respect of two estates in land held by different people. Similarly, covenants represent another species of proprietary obligation, albeit one that owes its origin to the remedial jurisdiction of the court of equity.2

In simple terms, ‘freehold covenants’ are, as their name implies, promises made by deed (‘covenants’) between freeholders,3 whereby one party promises to do or not to do certain things on their own land for the benefit of neighbouring land. Thus, the owner of house no. 1 may promise the owner of house no. 2 not to carry on any trade or business on his (no. 1’s) land, or the owner of house no. 3 may promise the owner of house no. 4 not to build above a certain height. Consequently, the landowner making the promise on behalf of his land is the covenantor (where the burden lies), and the landowner to whom the promise is made is the covenantee and his land is where the benefit lies. As in these two examples, the great majority of covenants between freeholders are ‘restrictive’ (negative) in nature, in that they prevent a landowner from doing something on his own land, as opposed to requiring him to take positive action. Of course, that is not to say that ‘positive’ covenants cannot exist (e.g. a covenant to pay for the upkeep of a boundary fence), but, as we shall see, the enforcement of a positive covenant between persons other than the original parties to it is extremely difficult.

1Technically, this is the law concerning covenants made between persons who are not in privity of estate. In the main, this means covenants affecting freehold land, but it also includes covenants between head landlords and subtenants. In addition, for reasons that will become clear, sometimes these rules are described as the law relating to restrictive covenants, a convenient but inaccurate description.

2Thus, covenants as proprietary obligations – as opposed to mere personal contractual obligations – developed because courts of equity were prepared to grant a remedy against a landowner who acquired land in the knowledge that it was affected by a covenant. The court of equity could not, in conscience, allow a landowner to escape an obligation affecting the land of which he was aware, even though it has been created by some other person – see Tulk v. Moxhay.

3Or other persons who do not stand in relationship of privity of estate, above fn.1.

371

Modern Land Law

Consequently, much of the law in this area has concentrated on restrictive covenants, and many textbooks refer to this topic as ‘the law of restrictive covenants’. Likewise, ‘freehold covenants’ may be contrasted with ‘leasehold covenants’, the latter being promises taking effect as a term of a lease made between the original landlord and original tenant and usually (but not necessarily) referring to the land that is the subject matter of the lease.

8.1 The nature of freehold covenants

A covenant is a promise made in a deed4 and, as such, is enforceable as a contract between the covenantor (promisor) and covenantee (promisee) irrespective of whether contractual consideration is given. The covenant may be given in a stand alone transaction by one neighbour to another, but is more likely to arise when a person sells part of their land to another and either gives (or extracts) covenants as part of the bargain. Thus, a landowner might agree to sell part of his land to X, but X will covenant as part of the transaction that he (X) will not build more than one dwelling on the land, or will not carry on a trade or business or undertake some other obligation of importance to the seller. In this sense, covenants can be an important source of private planning law because they may be used to preserve the character of a neighbourhood by preventing activity contrary to the status quo (e.g. ‘no trade’) or by limiting the impact of development (‘not more than one dwelling’). This is particularly important in large-scale developments where a web of interlocking covenants and easements can be used for the benefit of all future purchasers of land within the development.5 Moreover, if covenants are able to ‘run’ with the land in the sense of conferring proprietary benefits on one plot of land and proprietary burdens on another, these obligations may assume a permanence than endures irrespective of who comes to own the benefited and burdened plots. With this in mind, the nature of freehold covenants can be analysed in the following way.

8.1.1 Positive and negative covenants

Covenants between freeholders may be either positive or negative in nature. Positive covenants require the owner of the burdened land to take some action on their own or adjoining property, usually requiring the expenditure of money. An example is a covenant to keep one’s own property in good external repair in order to maintain the character of a neighbourhood.

4Consequently, it must comply with the formalities required of deeds found in section 1 of the Law of Property (Miscellaneous) Provisions Act 1989.

5Commercial as well as residential developments may benefit. Thus, restrictive covenants may be used to limit the type of products that are sold on individual premises, thus preserving a diversity of local shops in a High Street.

372

Chapter 8: Freehold Covenants

Negative or restrictive covenants require the owner of the burdened land to refrain from some activity on his own land. An example is a covenant not to carry on any trade or business perhaps because it is intended to preserve the residential character of a neighbourhood.6

8.1.2 Covenants as contracts

Covenants are promises made by deed by one person to another to do, or more usually not to do, something on their own or adjoining land. The covenant is made between the covenantor and the covenantee. Covenants are binding and enforceable as a matter of contract law between the parties irrespective of the presence or absence of consideration. Consequently, the original covenantor must do, or refrain from doing, that which he promised (and, therefore, is subject to a burden), and the original covenantee has the right to sue for performance of the covenant (and therefore enjoys a benefit).

8.1.3 Covenants as interests in land

Most importantly, covenants are now clearly regarded as proprietary interests in land, albeit equitable in nature.7 This means that they have the following attributes.

8.1.3.1 The covenantor’s land: the burden of the covenant

The contractual nature of a covenant makes it clear that the original covenantor (he who made the promise) is under the burden of the covenant. He must refrain from doing something on his own land if the covenant is restrictive (negative), or he must carry out the terms of the promise if the covenant is positive. As we shall see, however, performance of this burden is not limited to the original covenantor, but may (if certain conditions are fulfilled) pass or ‘run’ with the land itself. In other words, any person who subsequently comes into possession of the original covenantor’s land may be subject to the burden of the covenant and be required to observe its terms. So, if Mr Smith, the owner of Pinkacre, covenants with Mr Jones, the owner of Blackacre, that he (Smith) will not carry on a trade or business on Pinkacre, it is perfectly possible for any future owner (or, indeed, a mere occupier) of Pinkacre to be bound to observe the covenant, whether or not that new owner specifically agrees to the covenant. The burden of the covenant may ‘run’ with the land.

6For example, Gafford v. Graham (1998).

7They may not subsist as legal property interests (section 1 LPA 1925) although the covenant may create obligations at law as a matter of contract between the original parties.

373