#19928 - Easements And Freehold Covenants - Land Law

Easements and freehold covenants

Easements and covenants: rights that benefit one piece of land by burdening another piece owned by someone else.

• Usually through negotiations E.g. I’m buying your land from you. If you give me a right of way over your land, you will charge less for the land

• Point is normally to make the benefited land usable, or improve value by securing a right over the burdened land.

• Easements have existed for centuries and seem originally to have been devised to make landlocked fields accessible. Covenants arose in the C19th as a response to urban development.

• Covenants are restrictive in nature, e.g. benefit that my land gets is that you cannot build above a certain height on your land

  • Increase in population, trying to maintain value of land to make sure the area is not as populated

• The rules on both have regularly been considered by the Law Commission – e.g. Law Com. 327 (2011) – though reform hasn’t been forthcoming.

Easements

• Easement: right of enjoyment which exists for the land of A over the land of B. It could be expressly reserved by A or granted by B, or it could be implied.

• The right usually allows A to do something on B’s land, though it doesn’t allow A to take anything from the land (profits à prendre) .

Negative easements

• Occasionally, easements give A a right to restrict how B uses his land.

• These are called negative easements, and are limited to four instances:

  • Preventing B from blocking the passage of light, ventilation, or natural water-flow from his land onto A’s, or from altering his land in such a way that it disturbs the foundations of a building on A’s.

Formalities

• Easements are usually granted or reserved when A transfers some of his land to B. The benefited land (A’s) is called the dominant tenement, the burdened land (B’s) the servient tenement. (The two pieces of land will be, if not next to, then certainly very close to one another.)

  • *Grants (grant of an easement) an easement benefitting the land transferred to you and burdening the land retained by her, OR; Reserves (reservation of an easement) an easement benefiting the land retained by her and burdening the land transferred to you.*

• Expressly created easements need to be registered to count as legal easements (LRA 2002 s 27(2)(d))

• When express easements aren’t registered, they’re equitable easements and don’t bind disponees for value.

• But implied legal easements are overriding interests (and so bind everybody): LRA sch 1 para 3.

Ellenborough Park criteria

• Case-law establishes that:

  • easements ‘must be capable of forming the subject-matter of a grant’ – i.e., they mustn’t grant the impossible (the right to a nice view, the right to perfect TV reception …);

    • Cannot be sure that these are granted

  • There must be two plots of land, owned by different people (exception: A is leasing one of the plots to B);

  • easements exist in gross –i.e., as rights attached to land.

• These criteria were drawn together in Re Ellenborough Park [1956]

• Easements are not created for the benefit of a particular person, rather they are for the benefit of the land. They do not burden people, but they burden the land. Different from licences, where a right of way could be granted and is purely contractual. Easements mean my land gets the benefit and your land accommodates

• In Ellenborough Park, house-owners had special rights to use a small gated park situated near their houses. During WWII, the army had used the park as a physical assessment facility. After the war, the army wanted to keep the park, and was willing to compensate the owners to do so. The owners wanted enjoyment of the park.

• CA held: the owners had easements, not contractual licences, because the rights to use the park were conferred on the properties rather than the owners (or any other person).

• The park was the ‘servient tenement’ which ‘benefited’ the houses (‘the dominant tenements’). The houses and the park were owned by different people, and the easement didn’t seek to grant the impossible.

Recreational easements

• An issue which arose obiter in Re Ellenborough Park was whether there can be easements to use recreational and sporting facilities on neighbouring land. (These are person specific, rather than related to land)

• Lord Evershed maintained (obiter, but reflecting what was then precedent) that an arrangement allowing use of these types of facilities is a licence rather than an easement, because it will be specifically for the benefit of a person, or people, rather than for the benefit of the dominant land. Final court authority rejecting this position:

Regency Villas v Diamond Resorts [2018] UKSC

• Facts: Regency Villas concerned a country club, C, which had granted timeshare company, RV, a right enabling the timeshare occupants free use of the club’s recreational facilities. C stopped investing in the recreational facilities, and some of them fell into disuse. Then DR took over C. DR put money into re-establishing all the facilities. But it said RV’s occupants had to pay to use them.

• DR’s legal argument: according to Ellenborough Park, an easement has to benefit the dominant land. Free use of the facilities was of benefit not to the land but to the timeshare occupiers. So, after disposition from C to DR, RV’s occupants could no longer use them for free.

• Held: SC acknowledged that precedent supported this conclusion. BUT, it held that the time had come to alter the common law so that recreational rights are treated as benefiting the dominant land rather than the occupants.

• Lord Briggs, for the majority:

  • “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.” [81]

  • Lord Carnwath, dissenting, queried why the SC should be making policy – i.e., overruling precedent to change the common law because we supposedly now value recreation more than we used to.

    • Can this be proved that we treat recreational activities are valued more?

    • Implications? If DR had not re-established these facilities, they would have been under an obligation to do so in case RV’s occupants wanted to use them. If no one from RV or DV used the facilities, DV still would’ve been under an obligation to uphold them massive obligation to upkeep the land

    • Even if we do value recreational easements more, it does not follow that it is a good thing to do - changing common law?

Easements and numerus clausus

• Another point made obiter in Re Ellenborough Park was that the range of possible easements is never closed.

• The SC’s recognition of recreational easements in Regency Villas affirms this point – it’s an example of how, notwithstanding the numerus clausus principle, courts are occasionally prepared to create new property rights.

Easements as limited rights

• Easement gives the holder of the dominant tenement (A) a limited right over the servient tenement (held by B).

  • The right isn’t equivalent to actual occupation or exclusive possession.

• Sometimes, the nature of the right will be such that it gives A de facto exclusive use of B’s land, much as if A held an estate in the land. But A’s right will still be an easement if possession and control over the land are ultimately in B’s hands.

• Moncrieff v Jamieson [2007] UKHL per Lord Scott at [59]:

  • Difference between B granting A a lease of his garage and B granting A an easement to park his car in it:

    • With the lease, A has a right of exclusive possession (and so can use the garage however he wishes).

    • Whereas with the easement A’s right, though it may amount to his having exclusive possession, only allows him to park his car in the garage.

    • An easement doesn’t give A the right to use the garage for other purposes, storage, advertising on the outside, etc. But B can still do these things (as long as it isn’t incompatible with A’s easement).

‘Non-consensual’ easements

• Expressly granted legal easements are equitable and less registered but implied easements are legal as they are overriding interests. They are a stronger type of rights

• Not all legal easements are expressly granted. Sometimes they’re implied.

• Other forms of informally acquired proprietary rights arise because a C can point to something indicative of a common intention to share (beneficial entitlements under constructive trusts), or because the C incurred a detriment owing to reasonable reliance on some sort of representation (proprietary estoppel).

Prescription

• This has never been granted

• When C successfully makes the case that they have an informally acquired easement, the easement will often be attributable to nothing more than the fact that it’s been openly and regularly used for many years without anyone having objected to this

• Prescription Act 1832, s 2. If A has acted as if he had the easement he claims to have for a period of at least 20 years without his action having been contested, he acquires that easement through long and uninterrupted use: Overriding interest that is binding to the world becomes a matter of right, as if it had been granted

• All easements can arise by implication in this way. When the easement is negative in nature, this can be a problem

  • Getting a right not because they granted it, just because they enjoyed light for 20 years

    • Strange position for the law to be in

Other forms of implied easement

• Besides prescription, there are four other...