Easements and covenants are rights which benefit one piece of land by burdening another.
The use is normally to make the benefited land useable or improve its value by acquiring a right over the burdened land.
EG: access to landlocked fields.
Easements:
An easement is a limited right of enjoyment which exists for the land of A over the land of B.
Benefitted land: dominant tenement.
Burdened land: servient tenement.
The right usually allows A to do something on B’s land, but not take anything from it.
also see profits à prendre.
Positive and Negative Easements:
Easements can either give rights to do things (positive easements), or restrict how the other uses the land (negative easements).
Negative Easements:
The courts are very restrictive in extending negative easements.
Justifications for Being Restrictive: [1]
Negative easements restrain how land can be used by their owners.
All easements, positive or negative, put some form of burden / restraint on how the owner uses their land though.
Negative easements are undesirable because we don’t want them to arise by prescription.
In these cases, easements would come about because the neighbouring land did not actively prevent the claimant from establishing the easement. B would only be able to defeat the negative easement by doing the thing that A will eventually claim.
Types of Negative Easements:
Blocking the passage of light or ventilation.
Blocking the natural water-flow from B’s land onto A’s.
Altering B’s land in a way which disturbs A’s foundations.
Characteristics: [2]
Easements ‘must be capable of forming the subject-matter of a grant’. They must be capable of being expressly conveyed by deed (even if they are created another way) and therefore they cannot grant the impossible. There should be no ambiguity as to the scope of the right and extent of the burden – it must be ‘sufficiently certain’.
EG: a right to a nice / good view is too subjective and indefinite. [3]
There must be 2 plots of land, owned (or occupied) by different people. [4] These people must have proprietary rights.
The easement must ‘accommodate’ (confer a benefit on / improve utility for) the dominant tenement.
Easements cannot exist ‘in gross’ [5] – they are rights attached to and burdening the land itself.
In Re Ellenborough Park, house owners had special rights to use a gated park near their houses. During WW2, the army used the park as a physical assessment facility. After the war, the army wanted to keep the park and compensate the owners to do so. The owners wanted to enjoy the park.
The CA held that the owners had easements, not contractual licences because their rights to use the park were conferred on the property’s deeds rather than the owners themselves.
Formalities:
An easement can only qualify as a legal interest if it is held relating to a freehold or leasehold estate. [6]
Easements can be expressly:
reserved by A,
granted by B, or
implied.
Easements are legal interests only if they are created by statute, deed, registered disposition, or prescription. Easements created by other means (for example, a specifically enforceable written contract or estoppel) are always equitable.
Express Easements:
Easements are usually granted or reserved when A transfers some of their land to B.
Expressly created easements need to be entered on the title of the servient land and subsequently registered to count as legal easements. [7] If the dominant land is also registered, it must also be noted against its title too.
If express easements are not registered where they ought to be, they are equitable easements and thus don’t always bind disponees for value (see priority rules – week 1). [8]
Implied Easements:
Implied legal easements are overriding interests, so bind everybody. [9]
Prescription:
Generating an easement by prescription occurs when the owner of (what will be) the dominant tenement establishes long use over (what will be) the servient land.
If a claimant successfully makes the case that they have informally acquired an easement, the easement often will be attributable to nothing more than the fact that its been openly and regularly used for many years without objection. This creates a presumption that a grant of the right was actually made.
Condition: [10]
The use must be ‘as a right’, so must be without secrecy, without force and without permission.
If the claimant has acted as if they had an easement for at least 20 years without being contested, they acquire the legal easement through prescription. [11]
Implied by Necessity:
If not implying the easement leaves the land unusable, an easement will be implied. [12] The test for this is one of necessity; if the land is still usable, even if difficultly, the test isn’t satisfied. [13]
EG: only way of accessing the land is via helicopter = unusable.
EG: having to go a long way around the other land = usable.
Shared / Common Intention:
The court may imply that there was a shared intention for there to be an easement, so thus imply one.
‘whether there was a common intention of the parties that the land granted [or reserved] should be used in some definite or particular manner and, secondly, whether the grant [or reservation] of the easement is necessary to give effect to that intention.’ [14]
In Wong v Beaumont PT, W purchased a lease of a property from B so that they could operate a restaurant. Health regulations required W to install a ventilation unit, which would partly be installed on B’s retained premises.
The CA held that it was implied that W had an easement and thus could install the ventilation since B knew W wanted to open a restaurant and this would require health and safety compliance.
Note: overlap between necessity and common intention arguments.
Statutory Implication:
Where an owner sells or leases part of it to another, and that conveyance impliedly carries certain (alleged) easements for the benefit of the part sold, existing easements continue to bind after conveyance (and all other previously enjoyed rights will be convert into easements too). This is most common in landlord-tenant relationships.
‘A conveyance … shall be deemed to include … all... liberties, easements, rights and advantages whatsoever, appertaining to … the land … at the time of the conveyance.’ [15]
Reform:
It appears that this would mean that disponees acquire rights in contractual licences too. [16]
Although this seems unlikely, the Law Commission has recommended changing this wording to ‘... all rights appertaining to the land (except licences)’ to combat upgrading contractual licences to legal easements. [17]
Easements implied by statute will be legal easements.
Implication by Common Law: [18]
Implication by common law is often used in situations where land begins as one plot, is subsequently divided and one of the owners needs access to the land through the other plot.
An easement will be implied if:
There has been continuous (regular) and apparent (visible) use of the path prior (or other potential easement) to the conveyance.
The use of the path is necessary to the reasonable enjoyment of the other path.
The right granted meets the Ellenborough Park criteria.
In Wheeler v Saunders, B had 2 means of access to a highway (one over C’s property and the over over a longer route).
The court held that the availability of the alternative route meant that the right of access over C’s property wasn’t necessary for their reasonable enjoyment, so B did not have an easement.
Recreational Easements:
Initially, recreational use of neighbouring land was seen as merely contractual licences since it specifically benefits one person(s), rather than benefiting the dominant land.
This is no longer the case and now recreational easements can exist to bind disponees.
In Regency Villas, RVs was granted a right to use C’s recreational facilities. C stopped investing in the facilities, and some fell into disuse. DR took over C and invested into the facilities. DR wanted RV’s occupants to pay to use the facilities, arguing that there was merely a contractual licence between RVs and C which is not binding on DR.
The SC acknowledged the precedent supporting DR (Re Ellenborough Park) but the majority chose to overrule the fact that an easement cant purely for recreational enjoyment. RVs right upheld as an easement, despite the positive obligations that this would impose on the servient tenement.
Briggs JSC at [81]: ‘Whatever may have been the attitude in the past to ‘mere recreation or amusement’, recreational and sporting activity of the type exemplified by the facilities … is so clearly a beneficial part of modern life that the common law should support structures which promote and encourage it, rather than treat it as devoid of practical utility or benefit’.
Carnwath JSC (dissenting): criticizes precedent being overruled and common law being changed simply because society values recreation more than we used to.
Easements as Limited Rights:
An easement gives the holder of the dominant tenement a limited right over the servient tenement. This isn’t equivalent to actual occupation or exclusive possession.
The grant of an easement is not the conveyance of an ‘estate’ in the land. [19]
Difference between a Lease and Easement: [20]
With a lease, A has a right of exclusive possession, so can use the land as they wish.
With an easement, A has the right to use the land according to the intended purpose.
Freehold Covenants:
Covenants are private agreements that impose conditions on how parties can use their land. They are made by a deed.
Covenantee: person benefiting.
Covenantor: person burdened.
Failing to carry out the terms of the covenant amount to a breach of contract (even though consideration is not needed because of the use of a deed). Remedies include damages (in law), and discretionary injunctions and specific performance (in equity).
Positive and Negative / Restrictive Covenants:
A positive covenant requires positive action.
EG: maintaining a boundary fence. [21]
A restrictive covenant restrains how land can be used.
EG: maximum number of houses that can be built on the land.
Transferring Covenants to Successive Owners:
Freehold covenants may be passed on upon conveyance.
The rules on whether a covenant will continue to exist upon conveyance depends on whether it is the benefitted (covenantees) or burdened (covenantors) land being transferred.
In law, the benefit of the covenant will transfer upon conveyance, but the burden will not.
In equity, both the benefit and burden may run with the land.
(Express and Implied) Transfer of Benefit:
Covenantees can expressly contract to have their successors get the same benefits of the covenant as they have upon conveyance. This can be done via the title deeds (annexation) or in a separate agreement (assignment).
Unless otherwise agreed, it is generally assumed that the benefit of the covenant will be transferred when the covenantee sells their land.
‘A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title...’ [22]
Implied Transfer of Burden:
At common law, the covenantor’s burden will not be transferred to successors.
In equity, the burden can carry to the disponee only if it is a restrictive covenant. This will only be an equitable right in rem, so loses its priority over a purchaser (see priority rules – week 1). [23]
In Tulk v Moxhay, T sold land to E. The deed contained a restrictive covenant requiring E to keep and maintain Leicester Sq to be free of buildings. There are various successors after E, and eventually the land ends with M. M intended to build on the land, despite knowing about the restrictive covenant.
The HC of Chancery upheld an injunction restricting M from building in the land since it would be contrary to equitable principles if someone could buy the land, knowing its restrictions, and ignore those to profit.
Justification:
Positive covenants require financial expenditure, so it would be unfair to subject buyers to these. On the other hand, restrictive covenants should pass since they are simply abstinence.
However, this argument does not necessarily follow through; restrictive covenants can also have the effect of preventing disponees from making potentially profitable alterations to the land.
Templeman LJ acknowledged that the financial costs of honouring the burden of some positive covenants may be considerably less onerous than the costs of honouring the burden of some negative ones, but also noted the fact that change could require disturbing over a century of clear and accepted precedent. [24]
Registration:
If a burden takes effect as an equitable right in rem, they can be turned into a legal right in rem by registration.
The owner of the benefitted land can enter a notice over the burdened land on the Register, making it binding on everyone. [25]
The benefit has to ‘touch and concern’ the covenantee’s land to be transferrable. [26] This means it does not merely personal / contractual in nature and is intended to run with the land.
Resources:
References:
[1] Phipps v Pears [1965] 1 QB 76 (Denning LJ) [2] Re Ellenborough Park [1956] Ch 131, approved in Regency Villas v Diamond Resorts [2018] UKSC 57 [3] EG: Aldred's Case (1610) 9 Co Rep 57b; (1610) 77 ER 816, [1558–1774] All ER Rep 622 [4] Roe v Siddons (1888) 22 QBD 224 [5] Hawkins v Rutter [1892] 1 QB 668 [6] Law of Property Act 1925, s1 [7] Land Registration Act 2002, schedule 2, para 7 [8] Land Registration Act 2002, s27 [9] Land Registration Act 2002, schedule 1, para 3 [10] Solomon v Mystery and Vintners (1859) [11] Prescription Act 1832, s2; Dalton v Angus & Co (1881) 6 App Cas 740 [12] See Hillman v Rogers [1998] SLRYB 159; Pinnington v Galland (1853). [13] Re MRA Engineering (1988) [14] Davies v Bramwell [2007] EWCA Civ 821 [15] Law of Property Act 1925, s62 [16] See Wright v Macadam [1949] 2 KB 744 [17] Law Com. 327 (2011) paras 359-69 [18] Wheeldon v Burrows (1879) 12 Ch D 31 [19] Baker v Craggs [2018] EWCA Civ 112 [20] Moncrieff v Jamieson [2007] UKHL 47 [21] EG: Norwich City College v McQillin [2009] All ER (D) 300 [22] Law of Property Act 1925, s78 [23] Land Registration Act 2002, s29 [24] Rhone v Stephens [1994] 2 AC 310 (Templeman LJ) [25] Land Registration Act 2002, s32 [26] Robins v Berkeley Homes (1996)
Cases Mentioned:
Re Ellenborough Park [1956] Ch 131
Wong v Beaumont Property Trust [1965] 1 QB 173
Wheeler v Saunders [1995] 2 All ER 697
Regency Villas v Diamond Resorts [2018] UKSC 57
Tulk v Moxhay (1848) 41 ER 1143, reaffirmed in Rhone v Stephens [1994] 2 AC 310
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