In order to exist as a legal easement, rights imposed by a dominant owner must be fashioned by the parties themselves by an express act. This typically occurs when a person is selling some part of his land and retaining the rest as his own and is thus is worth recognition by Adam.
Adam also has the option of creating a convenant which applies especially in situations where freehold land is sold; either party to that contract may make covenants in order to limit the future use of that land. For the burden of a covenant to run with land it must be
restrictive (interest in land developed in equity); there must be a dominant tenement with the burden accommodating the identifiable dominant tenement. In addition, the land holding the benefit of the covenant must be sufficiently proximate to the land holding the burden and there must be clear evidence that the benefit will run with the land. It is also worth noting that on the whole covenants are negative, they prevent someone from acting but do not make them act. Negative covenants are able to bind future owners of the property they are imposed on whereas positive covenants only exist between neighbours who can enforce it on a personal level.
Covenants are created and imposed by being included upon the charges register; the only way they can be created is by express deed. In equity, the benefit of a covenant can run by annexation, assignment and through a scheme of development, as stated in Renals v Cowlishaw. Annexation is a means of automatically transferring a benefit of a restrictive covenant by permanently attaching it to the land without specific mention. Assignment is where, if a covenant has not been annexed at the time of creation, the benefit may be expressly assigned to the land. Finally schemes of development apply where sole ownership land is sold and divided into plots for numerous purchasers and provides that covenants become mutually enforceable between the parties.
In respect to Adam’s first wish, that the land sold off should not be used for anything but domestic purposes, and only one house should be built on it, this could exist as a covenant. This is due to the fact that a covenant works to restrict the way in which another person uses their land and builds upon it. It would be advisable for Adam to expressly state this covenant at the time of purchase and have it put on the charges register so that it exists and is legally binding on Eve. Also, due to the fact that it is a restrictive covenant created correctly the burden would run as an equitable interest with the servient tenement and thus protect his land indefinitely.
As to the issue of the built house being to a good standard and well maintained, it appears that this could not be a covenant as it could be viewed as a positive act. It also appears that the servient owner may have to spend money on this act, which is not enforceable as either an easement or covenant. However, Tulk v Moxhay states that to ‘keep’ and ‘maintain’ land is not a positive act. It could be a valid restrictive covenant, thus extinguishing the required expenditure issue.
Conversely, Adam’s wish to retain the right to use the path which would cross over the purchaser’s land could exist as an easement. This is because an easement permits the dominant owner to do something on or over the servient tenement; a classic example of
this is right of way and access. The law is unlikely to recognise an easement where such wishes have not been expressly stipulated. Therefore, in order for this easement to exist, Adam must create it at law by an express act and deed.
The next of Adams wishes is more difficult to define, as it relates to access to view and access to light. This is because the required right must be able to be the subject matter of a grant and must be sufficiently definite. This has defeated all claims to right to view because it is too large a burden to impose and cannot be definite. Light is slightly different as demonstrated by Allen v Greenwood. It is also supported by the method of obtaining easement; prescription. Section 3 of the Prescription Act 1832 governs that, if enjoyed for 20 years or more, the right to an easement of light will become absolute.
Finally, in respect to Adam’s plans to share a driveway with the servient owner, this is difficult to define as a covenant or easement. It is unclear from the facts given whether he literally means ‘shared ownership’ (which would result in co-ownership being granted), if he intends to retain the land or if he plans to sell the land but retain rights of use. If he were to retain the land it would be the case that he would grant the other owner an easement giving them rights of access and the process of incorporating this into the deed would be a standard practice. If the easement stemmed from the other party then it would be Adam who would be burdened whereas if the easement gave him rights of access he would be benefited. It is for Adam to decide which of the options he would
prefer but it would be advisable for him to maintain his status, as dominant owner, and avoid the burden.
It would be advisable for Adam to seek legal advice during the conveyance, as it is not always clear to whom the rights belong and to follow correct practice of incorporation, in order for all his wishes to successfully exist as easements or covenants.
In respect to Eve, following the aforementioned details of easements and covenants, it must be seen whether anything has been granted to the occupiers of ‘Paradise Cottage’ which would give them rights of way through her garden. By the details given there appears to be no evidence of a legally binding easement or covenant ‘in deed’ so it is then worth considering whether the owners have obtained the right of way through prescription. Prescription can be defined by Common Law; Lost modern grant; Statutory prescription. Therefore, if the owners of Paradise Cottage have enjoyed their right of way for 20 years or more, that includes the time period from previous occupancy as rights can run with the land, Eve may have to consider buying their benefit. This is where the party with rights expressly agree to transfer the rights to the person wishing to purchase them and thus revoke all access to those particular rights. It would be worth Eve finding out how long access to the path from that land has been granted and whether
it would be possible to reach an agreement with the parties as to purchase of those rights if prescription applies.
Bibliography
Land Law, Issues, Debates and Policy. Louise Tee (Willan Publishing 2002)
Modern Land Law. Mark.P.Thompson. 2nd Edition (Oxford 2003)
Property Law Statutes. Nigel.P.Gravells. 10th Edition (Sweet & Maxwell 2004/05
The New Law of Land Registration. Elizabeth Cooke. 1st Edition. (Hart Publishing 2003)
Word Count: 1556
Emma Rayner
Section 79, Law of Property Act 1925.
See Tulk v Moxhay (1848) 2 Ph 774 which provided the first clear authority on the matter of positive covenants.
Section 78, Law of Property Act 1925.
The covenant that was upheld in this case stated ‘that Elms, his heirs, and assigns should, and would from time to time, and at all times thereafter at his and their own costs and charges, keep and maintain the said piece of ground and square garden, and the ironing railing round the same in its then form, and in sufficient and proper repair as a square garden and pleasure ground…’ The defendant purchased the property with notice of the covenant applied in deed in 1808.
(1980) Ch. 119. This case was concerned with the right to light through windows and this is the only way in which the law accepts this claim to light.
Occurs where a claimant shows that a right has been enjoyed from time immemorial.
Applies if a right has existed for a 20 years or more, then presumption that easement had been granted but grant lost. All defined in the Prescription Act 1832.
A legal doctrine also based on fiction similar to lost deed.
