Foundation in Property Law

PART I

Property rights in land fall into two categories, ‘legal’ and ‘equitable’. Legal rights are distinguished from equitable rights in land because the owner of the legal estate in land can deal with the estate at law and the owner of the equitable rights has rights in equity. There are two types of legal rights; legal estates (Sec.1(1)Law of Property Act 1925) and legal interests (Sec.1(2)Law of Property Act 1925).

The Gables, the original property can be said to operate in the registered system of land under the Land Registration Act 2002. Sec.27(2)(a)2002 Act states that, ‘’ in the case of a registered estate, the following are the dispositions which are required to be completed by registration- a transfer” [Gravells,2004: pg184]. And Sec.27(1) states that, ‘’any disposition of land which is required to be completed by registration, must be registered so as to operate at law” [Gravells,2004: pg183].

Hugh granted a legal easement to Jamie. Easements are incorporeal hereditaments. It is a legal interest under Sec.1(2)(a)1925 Act. Re Ellenborough Park (1956) provides the authority for the four essential characteristics, each of which is elucidated below.

There must be both, dominant tenement (enjoys the benefit of the easement) and servient tenement (carries the burden). As Jamie enjoys the easement to park his car on Delish, he is the owner of the dominant tenement. Gordon is the owner of the servient land as he has the burden.

The easement should accommodate the dominant tenement. The right must be of benefit to the land and should add a value to the land. Apart from that, in Bailey V Stevens (1862), it was held that there should be a close proximity between the dominant and servient tenements. Lastly, the right must also confer more than a personal benefit to the owner. Hills V Tupper (1863) decided that the defendant’s right was simply a personal advantage. The dominant and servient tenements must not be owned by the same person (Roe V Siddons (1888)). Jamie and Gordon have separate tenements.

The last characteristic is that the alleged easement must be capable of forming the subject matter of a grant. There must be a capable grantor and a grantee of the easement. The right must also be sufficiently certain and defined. In Chaffe V Kingsley (2000), a claim to a right of way failed as the conveyance that granted the right was not specific enough. The right must be within the general nature of rights capable of existing as easements. The easement in the case study did define and state that Jamie was allowed to park his car.

Moreover, Gordon should use the case of Phipps V Pears (1965). He should determine whether the easement granted to Jamie imposes a positive burden on him and whether it involves money expenditure and if it excludes him from possessing his property by giving exclusive use to Jamie. Permanent parking is similar to claims of storage in Wright V Macadam (1949) andCopeland V Greenhalf (1952). In London & Blenheim Estates Ltd V Ladbroke Retail Parks Ltd (1992)and Batchelor V Marlow (2001), it was held that a right to park can be an easement as long as it does not deprive the owner of the use and possession of his land- also confirmed in Hair V Gillman (2000). Moncrieff V Jamieson (2007)confirmed that the servient owner should maintain the possession and control of his land. In the recent case of Virdi V Chana (2008), the courts held that if the owner of the servient land has a reasonable use of his land, then there could be an easement.

Gordon may claim against Jamie as he regularly parks his car and affects the deliveries. He parks his car everyday for a certain period of time. The case of Batchelor V Marlow (2003) could be used. Hence, it can be said as interfering with Gordon’s use of his land, and Jamie could be liable.

As Hugh has an estate in Delish under Sec.1(1)(a)1925 Act, he can grant Jamie an easement. However, Jamie has not registered his easement. According to Sec.27(2)(d)2002 Act, the express grant or reservation of an interest falling under Sec.1(2)(a)1925 Act has to be registered for it to be effective at law under Sec.27(1)1925 Act.

Jamie has an equitable right to park his car because he has not registered his legal easement. Jamie may have a claim under equity as an equitable easement. If Gordon is to be bound by the equitable easement, Jamie has to register it as a minor interest. The court may take the view that, under registered system, easements which are not registered may override first registration under Paragraph 3 Schedule 1 to the 2002 Act. In order for Jamie to override a registered disposition under Paragraph 3 of Schedule 3 to the 2002 Act, he will have to prove if he used the easement within the past year, Gordon had actual knowledge and if it was discoverable by a careful inspection of Delish.

In relation to the menu, the rule in Wheeldon V Burrows (1879) states that where a landowner, (Hugh) divides his land into two plots and sells one of the plots over which he has enjoyed a right, to a purchaser (Gordon), retaining the other half for himself, the purchaser will then acquire all the rights over the seller’s land, known as Quasi-easement. Gordon has been impliedly granted the rights that Hugh enjoyed previously. The land retained by Hugh after the sell is the servient tenement and Gordon’s land is the dominant tenement. Gordon has to fulfil the following criteria. Firstly, the quasi-easement should be noticeable at the time of inspection of the servient land over which the easement exists and should be continuous over a period of time. In Millman V Ellis (1996) the tarmac lay-by evidently showed that it was a right of way. There was a gravelled path connecting Delish directly to the sign. The easement must be reasonably necessary for the enjoyment of the property. Wheeler V JJ Saunders (1995) decided that there was an alternative route. There is no other place to display the menu- hence, the easement is necessary for the reasonable use of the enjoyment of Delish. Hugh had used the easement before the sale to Gordon.

As all the conditions are met and using Sec.62(1)1925 Act and Moody V Steggles (1879), Gordon may be able to enforce the quasi-easement.

PART II

The conveyance between Hugh and Gordon is a restrictive covenant. Hugh is the covenantor (carries the burden) and Gordon is the covenantee (enjoys the benefit). Restrictive covenants are negative in nature and they run with the land and are enforceable on successive purchasers.

Nigel, assignee of the covenantee has to prove the following in order to impose the covenant. Hugh has the burden in law as he is the original covenantor.

Firstly, the covenant must touch and concern the land. The covenant has to be for the benefit of the land only. P & A Swift Investments V Combined English Stores Group (1989) provides the guidelines. Firstly, does the covenant benefit any part of Nigel’s land? Apart from that, whether it influences the mode of use and value of his land. The covenant must not be of personal benefit to Nigel. The covenant does influence the value and use of Delish as Nigel is the owner of Delish. Marten V Flight Refuelling Ltd (1962) and Newton Abbott Corporation V Williamson & Treadwell (1952) can be used.

Under Sec.1(1)1925 Act, Gordon has a legal estate in Delish. He is the registered proprietor (The Prior’s Case (1368)). Nigel, the assignee of the covenantee also has a legal estate in the land to be benefited.

Lastly, the covenant must have been originally intended to run with the dominant land. Sec.78 1925 Act states that the covenant shall run with the land. It is a statutory deemed annexation. Nigel is the successor in title of Gordon. As the covenant does not show whether it runs with the land, Sec.78 will be applied. In Smith & Snipes Hall Farm Ltd V River Douglas Catchment Board (1949)and Federated Homes Ltd V Mill Lodge Properties Ltd (1980), the covenant was statutorily annexed to the land.

Hence, Nigel has the benefit in law. It should also be identified whether Ainsley has the burden in law. Austerberry V Oldham Corporation (1885) identified that under common law, the burden of a covenant will not run with the land of the covenantor. In the scenario, the burden has not passed to Ainsley in law and Nigel will not be able to enforce the covenant against Ainsley but may be able to do so against Hugh. Restrictive covenants can only be passed to the original contracting parties- Hugh and Gordon.

However, in Tulk V Moxhay (1848), the burden of a covenant may run in equity if the purchaser has notice of the covenant. In Haywood V Brunswick Permanent Benefit Building Society (1881), under the rule in Tulk V Moxhay, there are four requirements which should be met. The covenant in question is restrictive in nature. There is a presumed statutory annexation under Sec.79(1)1925 Act in the case study, hence, a burden on the land of the covenantor. The covenantee must own the land to be benefited by the covenant and the covenantor must own an estate in land to carry the burden. Gordon owns Delish and Hugh has an estate in land. Lastly, the covenant does benefit Delish.

In equity, the benefit may pass in either the following ways, namely; annexation, assignment or a building scheme. It is established that there is a statutory annexation under Sec.78 of 1925 Act and thus the covenant is automatically annexed.

In a nutshell, according to the above reasons, Nigel may be able to enforce the benefit of the covenant against Hugh at law and not Ainsley. And he could also be able to enforce the burden of the covenant in equity.