Useful Definitions in Land Law

An easement is an intangible right in land and a right that is enjoyed by a person over his neighbour’s property either in the form of a right of way, right of passage for water etc… which is enjoyed free of charge.^[1] Four essential elements exist for an easement to exist; they are derived from the case of Re Ellenborough Park.^[2] The first is a dominant and servient tenement must exist and the easement must be connected to land and cannot be independent of ownership in land. Secondly, the easement must accommodate the dominant tenement and “must have some natural connection with the estate as being for its benefit”^[3], in this case a right to access the property is a natural connection and provides a definite benefit to the owners. Lastly, the owner of the dominant and servient tenements must not be one in the same and the easement must be able to become the subject matter of a grant. As the owner of the neighbouring land is different to Mr. Rogers the criteria is fulfilled in his case although this may not have been the case for the previous owner. Also the right of way can be conveyed in a grant as it is identifiable so long as a specific tract, as illustrated between points A and B, as been used continuously by the owner and they are not merely driving over the common in a random and haphazard way.

The maintenance of the tract is possibly enforceable against Mr. Rogers in accordance with s.56(1) LPA 1925 which states that “A person may take the benefit of any condition, covenant or agreement over or respecting land,… although he may not be named as party to the conveyance of other instrument.” This is because the clause stating “of the owner for the time being” does not necessarily exclude Mr Rogers and the owner of Shipton Wold could argue that he is liable for repairs under the precedent of Re Ecclesiastical Commissioners for England’s Conveyance.^[4] If circumstances are as stated by the family, the previous owner’s use of the right of way would have passed to them with the transfer of the land without having been specifically mentioned and by virtue of s.62(1) LPA 1925 as “a conveyance shall operate to convey with land all easements, rights and advantages whatsoever…” to the purchaser so long as no contrary intention or objection is raised at the time of sale. As this property is inherited it is more likely that the easement of the right of way will be upheld as valid and essential to Compton Grange. Also, where word of annexation are used the benefit conferred by a covenant will pass automatically with the land, however it is necessary that the original wording of the covenant showed the intention of the original parties for the covenant to run. Usually this is achieved by some technical wording such as “for the benefit of” some land.^[5]

A covenant is defined as “a clause in an agreement contained in a deed whereby a party stipulates for the truth of certain facts, or binds himself to give something to another or do or not to do any act…”^[6] A restrictive covenant is an interest in the land of another recognised first by equity whereby the owner of one piece of land may hold a restrictive covenant over the land of another. The covenant restricts the second owner’s use of the property and is generally used as a means by which developers of land can maintain the amenities of an area. The covenant must be outlined in a deed which is generally a requirement fulfilled through the conveyancing paperwork which will name both parties privy to the covenant, otherwise the courts will not enforce the covenant against Mr. Rogers even if the deed had been made between Shipton Wold and the previous owner under the rules of privity to contract. Therefore, Mr Rogers is prima facie responsible for the maintenance of the track yet often courts are hesitant to enforce covenant that cause expenditure on the part of the new owner. In equity a successor to the covenantor cannot be forced into expenditure but can be forced into taking certain action.^[7] However exceptions exist which would give the owner of Shipton Wold, trying to enforce the covenant the right, enforceable in equity, against the current owner. Five requirements exist in these circumstances which are outlined below.

Firstly, the covenant must touch and concern the land, meaning it must relate to the use or value of the land in the terms of a proprietary obligation. A test to determine this is set out by Lord Oliver in Swift Investments^[8] which asks whether the covenant could benefit any owner of Compton Grange, whether the covenant affects the nature, quality or value of the land and is the covenant expressed as a personal obligation. Secondly, the covenant must be restrictive or negative in nature which in this case is likely to be true, as was the case in Tulk v Moxhay^[9] whereby a covenant not to build was held to be negative. Thirdly, the covenant must have been imposed to benefit Compton Grange by the original covenantee in order to benefit the land. The land must be identifiable although it need not necessarily be the same size as when the original covenant was made. The next requirement is that the burden of the restrictive covenant must be intended to run with the land. This obligation is fulfilled by evidence which establishes that the burden was meant to be proprietary instead of personal. The burden of a restrictive covenant is deemed to be attached to the land by virtue of s.79(1) of the LPA whereby “a covenant relating to land of the covenantor shall unless contrary intention is expressed be deemed to be made by the covenantor on behalf of himself, his successors in title….” which results in the burden being annexed to the land in order that the burden may run. With these exceptions in mind it is likely that no contrary intention will arise if the original instrument does not contain any words or expressions which indicate such an intention. In registered land the person against whom the restrictive covenant is being enforced is registered under the LRA, therefore the covenant must be registered as a minor interest against the burdened land in order to be binding.^[10] If it is not registered it will become void and unenforceable forever. The only exemption to this rule under registered land that would benefit Mr. Rogers is if he was registered as proprietor yet not the purchaser of the land for valuable consideration or he is someone who purchased merely an equitable interest in the land. Also as a consequence of the decision in Federated Homes Ltd.^[11]the significance of express covenant will diminish in that it will be necessary to demonstrate that the benefit has been expressly transmitted unless it is shown by a separate but contemporaneous document that the covenant has been expressly assigned to the successor.

With regards to the right of storage to benefit Mr. Rogers and prima facie afford him some storage of fuelstuff on Shipton Wold land, Mr Rogers has a legal right to “…easements, rights and advantages whatsoever, appertaining…to the land…”^[12] and in regards to other covenants on the property Mr Rogers can rely on s.78(1) LPA 1925 which states that “A covenant relating to any of the land of the covenantee shall be deemed to be made with the covenantee and his successors in title…and shall have effect as if such successors… were expressed.” Previously a successor claiming the benefit of a covenant at common law had to show that he had acquired the same estate that the original owner or covenantee had held, this is because common law regarded the covenant as attaching to the estate, thus only the person who took the estate in the same manner as Mr Rogers could obtain the benefit of the covenants. The Court of Appeal^[13] reinforced this assumption of benefit and thus section 78 has become a very critical component to making substantial changes to the law. The benefit of all the covenants, both positive and negative, would pass with the estate to the new owner, for at common law the benefit of both types of covenant can run to a successor of the convenantee who was Mr. Rogers’ grandfather. The fact that the burden of the covenant will run primarily through the application of equitable principles means that one must bear in mind that the need to protect the right granted by the covenant by entry on the register or as a land charge if the land is unregistered. As a last resort, in order to be able to use his Ferrari with ease, Mr Rogers could seek an access order from the court which will enable him to lawfully gain access to neighbouring land in order to carry out works which are reasonably necessary for the preservation of his own property under the Access to Neighbouring Land Act 1992. The access order would not only benefit him but it will be binding on successive owners of the servient land if it is protected on the register prior to transfer. Finally, it is possible to determine the validity of restrictive covenants by application to the court for a declaration as to its effect under s.84(2) LPA 1925 as amended by s.28(4) LPA 1969.

BIBLIOGRAPHY

DIXON, M. (1999) Principles of Land Law 3^rd Edition London: Cavendish Publishing Ltd.

MACKENZIE, J-A. AND PHILLIPS, M. (2002) Textbook on Land Law 9^th Edition Oxford: Oxford University Press.

MAYNARD, J. (2005) The Boundaries Problem Website:

http://www.boundary-problems.co.uk/framehome.htm

MURDOCH, J. (13 Nov. 2004) “The seeds of dissent” Explanation of the Case: Estates Gazette.

PENNER, J.E. (2002) Mozley & Whitley’s Law Dictionary 12^th Edition London: LexisNexis Butterworth’s.

SMITH, R.J. (2000) Property Law 3^rd Edition London: Pearson Educational Ltd.

www.propertylawuk.net

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Footnotes

^[1] Derived from Penner (2001) page 121.

^[2] [1956] Ch 131

^[3] Bailey v Stephens (1862) 12 CBNS 91 per Byles J.

^[4] [1936] Ch 430.

^[5] Rogers v Hosegood [1900] 2 Ch 388

^[6] Penner (2001) page 90

^[7] See Tulk v Moxhay (1848) 2 Ph 774.

^[8] v Combined English Stores [1989] AC 632

^[9] (1848) 2 Ph 774.

^[10] See s. 20 LRA 1925

^[11] Federated Homes Ltd. v Mill Lodge Properties Ltd. [1980] 1 WLR 594

^[12] See LPA 1925 s 62(1)

^[13] See Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500