Lecture Notes Lecture Semester 2 Easements and Covenants Ho 2016

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Lecture notes, lecture semester 2 - Easements and

covenants ho 2016
Land Law (University of Leicester)
Distributing prohibited | Downloaded by Yugenndra Naidu (yugenndranaidu20@gmail.com)

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Leicester Law School
Land Law
2015-2016
Easements
and
Covenants
© Barbara Bogusz 2016

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EASEMENTS LECTURES
Part One – What is an Easement?
A. INTRODUCTION
An easement:
 is a right over one piece of land for the benefit of another piece of land;
 it is an incorporeal hereditament
 the grantor gives the right whilst the grantee takes and enjoys it.
 not tangible – cant touch it but gives you a right of ownership if your exercise it
 property right
 attached to land
 it is attached to a fee simple absolute in possession
 right to store items on someone elses land, right to park on their land etc etc
could have agreement between two neighbours, ie. if you need to drive over their driveway to
get to your garage so benefit for you
Ellenborough Park, Weston-Super-Mare and the four essential characteristics of an

easement (Re Ellenborough Park [1956]).
In 1855, Ellenborough Park and the surrounding property was an open and unbuilt-on
piece of land owned by one person. The owners of the land sold some of the plots
surrounding the park to property developers and included in the conveyance was the right
to enjoy the park subject to the payment of a fair and just proportion of the costs to
maintain the park (only for local residents). many years later, after the developed plots
had been sold, which included in the conveyances the right to enjoy EP subject to
maintenance payments, the case came before the courts questioning whether the
purchasers of those plots of land (and their successors) had any enforceable rights to use
EP i.e. whether it was an easement or not. The CoA held the purchasers (and their
successors) of the plots had easements over the collective garden. The right to use EP as a
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private pleasure ground is a recognised easement in law.

4 characteristics of an easement established by this case…

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1. There must be a dominant and servient tenement.

2. The right must accommodate the dominant tenement.
3. The owners of the two tenements must be different people.
4. The right claimed must be capable of being the subject matter of a grant.
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B. THE ESSENTIAL CHARACTERISTICS OF AN EASEMENT
(i) There must be a dominant and a servient tenement
An easement can only exist if its attached (appurtenant) to the dominant tenement.
Tenement simply means a piece of land.
An easement cannot exist in gross – this is saying the easement must be exercised over
another bit of land, cant be held personally has to be attached to another piece of land not
an individual – means there isn’t a dominant parcel of land
The dominant tenement

- enjoys the right
The servient tenement
Easements cannot exist in gross – London and Blenheim Estates Ltd v. Ladbrook Retail
Parks Ltd [1994]
involved a large car park. the owner of the car park said to a local landowner you can
park on my land. but there was a clause in this agreement that said the easement would
attach to any other land that the grantee would have in the future. at that particular time
there was a problem it wasn’t clear as to what was the dominant land it didn’t exist as
such. they said the essential characteristic of the easement didn’t exist it was in gross,
would follow the landowner about and court said you cant there has to be a servient
tenement that’s something that is attached to the land and not the person itself.
this passage shows the reluctance of courts to acknowledge an easement in gross since it
would burden the land to an ‘uncertain extent’. This use of the term uncertain extent
would suggest that the operational scope of the easement could be uncertain and unclear;
the right claimed may be more than what is expected of an easement. Such an easement
which has no clear limits could burden the servient land with excessive use. This is
because the easement in gross is not restricted by the needs of the dominant land. Sturley
notes that ‘where an easement in gross to pass to a corporation or large group of people
the problem would be more acute. Could the holder of a [right of] way in gross assign his
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right to the public at large, thus effectively creating a highway when an exclusive [right
of] way had been intended?’

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An easement attached to the land provides certainty for any potential purchaser. If an
easement was to exist in gross it may be viewed as a ‘clog on title’ where it may be
difficult to discover who owns the easement. This will then depend on how the right is
protected, and currently under the LRA 2002 there is no scope for protecting an easement
in gross. Identifying who holds such rights may not be easy and may deter a purchaser
from buying the property. This could make the land inalienable running contrary to the
aims and objectives of the 1925 reform. Arguably, the right claimed may lie in a different
right altogether, for example a restrictive covenant, a lease, or a profit.
(ii) The right must accommodate the dominant tenement
The right must make the dominant land a better property – not about making
improvements for you the person but for the land instead.
for an easement to accommodate the dominant land it is not essential that the dominant
and servient land be adjacent to each other, although they must be sufficiently near each
other for the easement to be of direct benefit to the dominant land. In Pugh v Savage ,
there was a ‘right of way’ over one field to get to another field, but a third field lay
between the servient and dominant fields. The right of way was held to be a valid
easement.
Moody v. Steggles (1879) – a claimed right to put up a pub sign on neighbouring land.
- involved a claim by the dominant owner to have the right to advertise his pub on the Ds
house
- the Cs pub was situated behind the Ds house and the sign provided directions to the pub
- the court in this case acknowledged that though this easement did not physically relate
to the land, the easement was connected with the manner in which the C used his
property
- it was the nature of the right which the court thought was more significant than the
physical connection between the dominant and servient land
- the dominant owner used the property as a pub and the sign was a means of
communicating to the public the location of the pub
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- it was held that the claimant had an easement which benefited the dominant land

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- the easement in this case supported the business run on the dominant land, whereas in
contrast in Hill the easement claimed was based on a personal/commercial advantage
rather than benefiting the dominant land
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Hill v. Tupper (1863) – a claimed right to have the sole and exclusive right to put canal
boats on a canal
- the Basingstoke Canal Company owned the canal and some land on the banks of the
canal
- they leased the land on the banks of the canal to Hill for the purposes of a boatyard
- the lease included a clause granting Hill the exclusive right to put pleasure boats on the
canal
- Tupper nevertheless started placing his pleasure boats on the canal
- Hill sued Tupper, claiming that his ‘pleasure boat monopoly’ was actually an easement
- if the court had accepted that claim, it would have meant that the pleasure boat
monopoly was a property right which could be protected by suing anyone who interfered
with it
- the court, however, held that the pleasure boat monopoly was not an easement
- the monopoly did not ‘accommodate’ the land leased to Hill, rather it was only for the
benefit of Hills business
- Hills only remedy was to sue the canal company for breach of contract
“so far from the right… accommodating the land. The land was but a convenient
incident to the exercise of the right” Evershed MR commenting on Hill v. Tupper in
Re Ellenborough Park.
Platt v. Crouch [2003] – the right for guests of a hotel to moor their boats on another’s
land.
- crouchs owned a hotel on the moors
- they sold their hotel to platt and they moved into a little bungalow
- they retained the path which goes from the moorings up to the road
- one of the issues that arose is whether or not there is an easement to moor boats which
then would enable those who have moored their boats to cross the path which was
retained by the crouchs and go across to the hotel
- i.e. can the hotel enjoy the right to moor those boats
- supports the business
- just allows the people to move over to the hotel and supports that particular business Page62

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(iii) The owners of the dominant and servient tenement must be different people
An easement allows one landowner to make use of another nearby piece of land for the
benefit of his own land i.e. an easement is essentially a right exercised over another
persons land. By definition, for an easement to exist the land must be owned or occupied
by a different person. It is not possible for a person to grant an easement to him or herself
because there is no diversity of ownership or occupation. In this situation it could be
possible to have what is known as a quasi-easement. Where the plots of land are in
common ownership a quasi-easement will not be binding until it has met all the Re EP
characteristics.
“When the owner of Whiteacre and Blackacre passes over the former to Blackacre, he is
not exercising a right of way [over Whiteacre in favour of Blackacre]; he is merely
making use of his own land to get from one part of it to another” Fry L. J. (Roe v. Siddons
(1888))
What is a quasi-easement? – has a lot of the characteristics of an easement but you cant
say it has different ownership, if I own it it satisfies all the other characteristics but not
this one. looks like an easement but isn’t one in reality.
(iv) The right must be capable of forming the subject matter of a grant
An easement is a property right and is capable of existing as a legal interest. For an

easement to exist it has to be capable of being granted by deed even if it has not been
granted by deed. In order to comply with this provision there are a number of subsidiary
rules which need to be considered in order to determine whether this characteristic has
been complied with:
This breaks down into parts:

a) There must be a Capable Grantor or Capable Grantee.
the person conveying the property right (ie the grantor) must be competent to grant an
easement. A freehold owner of a property would be able to grant an easement, by virtue
of the fact that the freehold owner has a legal estate of land and is capable of granting a
legal easement.
A tenant for years is a capable grantor but the tenants grant will only bind their leasehold
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estate (Simmons v Dobson). This simply means the person granting the easement must

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have a legal estate in land, if they do not then that person is not a capable grantor. This
follows the maxim ‘nemo dat quod non habet’ (no one can give a better title than he has)
Likewise, the grantee must be in a position to acquire the property right, that is, a capable
grantee. Certain grantees are not in a position to acquire easements, for example a
licensee of the servient land or a tenant who does not have the power to bind the
leasehold.
b) The right must be sufficiently definite, failing which it will not be an easement, for
example:
For an easement to be capable of forming the subject matter of a grant, it must be clearly
defined.
William Aldred’s Case (1610)
- considered whether there was a right to a view
Harris v. De Pinna (1886) – the court, applying this principle, held that there could be no
easement for a general flow of air to a timber-drying shed. This was viewed by the court
as being ‘too vague and too indefinite’. Similarly, there cannot be an easement for a
‘beautiful view’ nor is there a ‘privelege of wandering at will over all and every part of
anothers field or park’. The consequence of having an ill-defined easement is that it will
be unclear as to whether there has been an interference with the enjoyment of the
easement.
A right to light? – an easement of light, under which a dominant building is entitled to

natural light coming across the servient land, is not an exception to the rule that an
easement must be capable of reasonably exact definition. There is no general easement of
light over the whole land. An easement of light can only exist where it is sufficiently
definite and this would only apply where the light comes through specific points in a
building, for example a window. Where a dominant building has an easement of light
over servient land, the dominant building is not entitled to an unlimited amount of natural
light coming across the servient land. The HoL made this point clear in Colls v Home and
Colonial Stores where it was held that where there is an easement of light, ‘The light
reaching the windows must be such as is sufficient according to the usual notions of
mankind for the comfortable enjoyment of the building, bearing in mind the type of
building and its locality’
Hunter v. Canary Wharf [1997]

- interference with TV signals, wouldn’t be sufficiently definite
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c) The right must be within the general nature of rights capable of being created as
easements
 The right must not impose any positive burden upon the servient tenement
 the court may consider whether a new alleged easement is analogous to any
established easement
 easements are classified as either positive easements, or negative easements
 positive = the benefits of the easement are enjoyed by occupants of the dominant
land performing some activity such as walking across the servient land or, in
Miller v Emcer Products, using the toilet. Easements such as rights of way or
rights to use an airfield are positive
 the law is very cautious when it comes to a claim for a new type of negative
easement
 negative easement = arises where dominant land (or building) just sits there and
passively enjoys the light or support it gets ‘from’ the servient land or building.
The right to light is a negative easement. The effect of a negative easement is
often severely to hamper the development of the servient land.
 this was a major reason why the CoA in Phipps v Pears refused to accept as an
easement the (alleged) right of one building to be protected from the weather by
another building.
Rance v. Elvin (1985)

- LJ Browne Wilkinson stated that ‘it is an essential feature of an easement that it merely
requires the owner of the servient tenement to suffer something to be done on the servient
tenement: a positive obligation on the owner of the servient tenement to do something is
inconsistent with the existence of such an easement’. This statement acknowledges that
there can be no positive obligation on the servient owner of land. An easement of this
kind, that is, involving expenditure or other positive action, would not be recognised.
There appears to be one exception to this general rule. In rural areas you may come
across the ‘spurious easement’ of fencing. Under this ‘easement’ the dominant farmer has
the right to insist that the servient farmer maintain the boundary fence between their
properties. Courts have repeatedly stressed that this fencing ‘easement’ is anomalous, and
that no other exceptions to the ‘no expenditure rule’ will be tolerated. Support for this can
be found in…
Crow v. Wood [1971]

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- the easement of support is not an exception to the rule that an easement must not
involve expenditure by the servient owner
- easements of support are common, often existing where there are semi-detached or
terraced buildings
- where an easement of support exists, it is the right of the dominant building not to have
support from the servient building deliberately withdrawn
- thus, if the servient owner knocks down the servient building, with the result that the
dominant building collapses, the dominant owners rights have been infringed
- the servient owner is under no obligation to undertake repairs or maintenance so that the
dominant owner can continue to enjoy the benefit of an easement, for example where a
private right of way exists, the servient owner is under no liability to maintain the way
- however, the dominant owner has the right to carry out repair works
the only obligation the servient landowner is under is to avoid doing anything which
could interfere with the dominant owners enjoyment of the easement.
 The right claimed must be in the general nature of rights recognised as easements
The list of new easements is not closed although the likelihood of a new right
being recognised is better if the right is positive (a right which gives the dominant
land owner a right to use the property of the servient estate) rather than negative
(a right which in practice prevents the owner of the servient land using that land
in a particular way).
Re Ellenborough Park [1956]
Phipps v. Pears [1965] – the right to have protection from weathering

 a house was demolished, leaving a wall of a neighbouring house exposed
which had not been built to withstand the weather
 when frost began to cause cracks to appear in the wall the owner of the
exposed house brought an action against his neighbour, claiming an
easement of protection from the weather
 CoA held there was no such right known to the law, and none should be
recognised.
Hunter v. Canary Wharf [1997] – the right to television reception

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 HoL considered whether there was an easement giving the right to receive
uninterrupted radio or TV signals

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 the claim failed because it did not come within the established categories
of negative easements
 Lord Hope indicates that the most appropriate solution where the
dominant owner is seeking to restrict the servient owners use of the land
lies in a restrictive covenant between the parties
 restrictive approach adopted in this case in relation to TV reception
However, the SC has recently recognised the right to emit a noise as an

easement…
Coventry v Lawrence [2014] UKSC 13 - right to emit a noise, ie the transmission
of sound waves over the servient land, is capable of being an easement
- the Cs lived approx. half a mile from a speedway and stock-car stadium and a
motocross track
- due to the high levels of noise from the stadium and track the Cs complained to
their local council that this amounted to a nuisance
- Lord Neuberger acknowledges that this type of easement is somewhat unusual
since it has the ability to affect a large number of properties and at varying times
depending when the racing takes place
- furthermore, the characteristic of this easement is described as a ‘right to
transmit sound waves’ over land
- this attempts to provide some form of clarity to its definition
Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2015] EWHC 3564 -
right to use 'the swimming pool, golf course, squash courts, tennis courts... and
any other sporting or recreational facilities on the ...adjoining estate'
 The right claimed must not be too excessive as to give the dominant owner sole or
joint possession of the servient land
Reilly v Booth – ‘There is no easement known to law which gives exclusive and
unrestricted use of a piece of land’
Despite this clear statement, resolving disputes in this area is not without difficulty
“… an easement represents a diminution of a servient owner’s rights, but does not

mark a deprivation of those rights.”
(M. Haley & L. McMurty, “Identifying an Easement: Exclusive Use, De Facto
Control and Judicial Constraints” (2007) 58 N.I.L.Q 490 at 490.)
But how do we set the boundary between diminution and deprivation?

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Copeland v Greenhalf [1952] – a right to store vehicles on a strip of land. –the alleged
servient property was a long strip of land about 150 feet long and 20 feet wide. The
servient owners used the strip to gain access to their orchard. The alleged dominant
owners were ‘wheelwrights’, that is, vehicle repairers. For many years they parked
vehicles awaiting repair on the strip. These vehicles often occupied a large part of the
strip, but the wheelwrights were always careful to leave a gap through which the ‘servient
owners’ could pass to get to their orchard. The wheelwrights eventually claimed that they
had a prescriptive easement to park their vehicles on the strip. A claim to an easement
was rejected because the wheelwrights were in effect claiming, not a right against
someone elses land, but joint possession of the strip of land. Such a claim was to
extensive to be an easement. The right claimed reflected a claim for ownership in land
either in the form of a lease or a freehold.
In contrast….
Wright v. Macadam [1949] – a right to store coal in a coal shed
 claimant leased the top floor flat to the D and gave her permission to use the shed
in the garden to store coal
 Cs lease had been renewed but there was no reference to the use of the shed in the
lease agreement
 D later demanded payment from the C to use the shed
 CoA held that the C had the right to store coal in the shed and this amounted to an
easement
 this case has been criticised on the basis that storing coal in a shed would surely
amount to exclusive possession
 the servient owner is effectively excluded from using the shed until the coal has
been used up
the apparent conflict between these two cases is highlighted in Grigsby v Melville - an
alleged right to store goods in a cellar was held not to be an easement. The claim failed
because it amounted virtually to an exclusive right of user so extensive over a confined
space (in this case a cellar) on the servient land. The court in this case suggested that the
assessment of whether there is excessive use depends on the degree or extent of exclusion
of the servient owner. This assessment is based on the facts of each case.
“… the defendant is claiming the whole beneficial user of the strip of land… he can
leave as many or as few lorries there as he likes for as long as he likes… that is not a
claim which can be established as an easement. It is virtually a claim to possession of the
servient tenement, if necessary to the exclusion of the owner; or at any rate to a joint
user…” (Upjohn J.) [emphasis added]
Timing?
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Batchelor v. Marlow [2001] – the right to park 5 cars in a car park between specific times

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- remains good law

- Copeland failed cos there was a claim for a whole and beneficial user (remember this)
- D was claiming an easement to park 5 cars on a verge between 8.30 and 6pm. it was on
the side of the road which the C owned and an area which was designated for car parking.
the council for the D in this case wanted to distinguish it from Copeland by saying theyre
only parked there during daytime hours its not like Copeland where they were there all
the time, after 6pm the verge is still useable and same as before 8.30
- CoA said no this is not an easement cos the C in this case was left with no reasonable
use of the verge
BUT
Wright v. Macadam [1949]

- timing wasn’t really a crucial factor
- very vague on its justifications
- proportion of the servient tenement that’s affected by the easement
- then have to turn to next case….
London & Blenheim Estates Ltd –v- Ladbroke Retail Parks Ltd [1992] – a right to park in
a car park but not in a specific place. Paul Baker QC accepted that there could be an
easement to park vehicles on a piece of servient land provided the servient land was
sufficiently large, that is, the car should not take up too much space on the land– judge
Paul Baker QC said on the issue of exclusiveness that ..
the court in this case tried to explain the compatibility of Copeland with Wright….
“A small coal shed in a large property is one thing. The exclusive use of a large part
of the alleged servient tenement is another.” (Judge Baker QC on Copeland and
Wright)
The court is clear in its suggested analysis of parking easements. The right claimed must
be consistent with the nature of an easement. A parking easement will exist if the servient
owner continues to have ‘reasonable use’ of their land and the right claimed must not
amount to an ‘invasion of the servient land’. The level of interference of the easement is a
matter of degree. This requires an assessment of the facts of each individual case.
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Jackson v Mulvaney – the C argued that she had a right to use the communal garden for
recreational and amenity purposes and to cultivate a flower bed. She succeeded in her
claim. The CoA did not view the cultivation of a flower bed as exclusive possession of a
particular area on the land; cultivating a flower bed was merely evidence that the C was
exercising her right to use the communal garden for recreational and amenity purposes.
The Ds in this case, by removing the flower bed without informing the C, had interfered
with her rights. If the Ds had consulted with the C and given her the opportunity to move
the flower bed, her rights to exercise the easement to use the communal garden for
recreational and amenity purposes would not have been interfered with.
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Substantial interference
Q: whether the exercise of the asserted right substantially ousts the servient owners
reasonable use of the burdened land?
Mulvaney v. Gough [2002] – a right to cultivate flower beds on another persons land.
- D owned some land which the Cs (local residents) had been cultivating a garden
- they were using this adjoining garden and it was their communal garden
- D decided he wanted to create a gravel track so that he could drive his vehicle across
that piece of land
- so he dug up the garden and created this path
- Cs said we have an easement to go onto the land and cultivate it cos it improves the
quality of the land
- courts agreed with them but said its not a right to have a particular designated area cos if
you do then that amounts to exclusive possession of the servient land
- so they had a right to cultivate the land but it could be moved, quite legitimate for the D
in this case to create his gravel path and for the Cs to move their flowers
Moncrieff v. Jamieson [2007] UKHL 42; [2007] 1 W.L.R. 2620

The HoL considered an appeal from the Scottish Court of Session on, amongst other
things, whether the right to park amounted to an easement.
 C had a right of way over a strip of land 150 yards long to gain access to their
house, which was wedged between the servient land and the sea
 in practice, the dominant owners parked their cards (even overnight) on a wider
part of the strip adjacent to their property
 it was physically impossible to park the car on the dominant tenement because the
only access to the dominant land was through a gate and down some steep steps
 in holding that the Cs did have a servitude (an easement) to park their vehicles,
the Law Lords referred to the English cases of Copeland, Batchelor and London .
Their lordships were of the view:
 that on the relevant issues, the English law of easements and the Scots law of
servitudes land; and
 that both legal systems did recognise an easement/servitude to park vehicles on
servient land; and
 that in the view of the HoL a right is only too extensive to be an easement if
the exercise of the right would deprive the servient owner of possession of his
property
 Lord Scott in his judgement considered the issue of ‘reasonable use’ of the
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servient owner, and called this the ‘ouster’ principle having been influenced by an
article written by Alexander Hill-Smith.

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 in his assessment of the case law to which the ouster principle has been applied,
Lord Scott noted that there are inconsistencies with the decisions, notably
Copeland and Wright.
 Lord Scott made several observations on the manner in which the case law in this
area may be interpreted. In considering Wright, his Lordship noted that there is a
difference between ‘sole’ use and ‘exclusive possession’
 therefore, sole use would not be inconsistent with the nature of an easement
 if sole use amounted to the exclusion of the servient owner, for example if the
dominant owner has the only set of keys to the coal shed, the servient owner is
barred from entering the shed, this would show not only sole use on the part of the
dominant owner but also that the dominant owner has possession and control over
the land. this would amount to an easement.
The decision is not a binding precedent for the law in England & Wales, but it is highly
persuasive:
“… there seems to me no difference relevant to any issue that arises in this case
between the common law in England and Wales relating to easements and the
common law in Scotland relating to servitudes.” Lord Scott of Foscote
Lord Scott:
“I would, for my part, reject the test that asks whether the servient owner is left
with any reasonable use of his land…”
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“… a test which asks whether the servient owner retains possession and, subject
to the reasonable exercise of the right in question, control of the servient land.”
According to Roger Smith, “one great advantage of this approach is that there would be
no gap between claims to the fee simple (or a lease) and claims to easements.”
Lord Neuberger:
“I see considerable force in the views expressed by Lord Scott… to the effect that
a right can be an easement notwithstanding that the dominant owner effectively
enjoys exclusive occupation, on the basis that the essential requirement is that the
servient owner retains possession and control over the servient land.” – TEST
FOR AN EASEMENT
Virdi v. Chana [2008] EWHC 2901 (Ch)
- said we will still use the reasonable use test but we will say maybe the issue of
possession and control is quite useful as an alternative
In addition to the above cases, your attention is drawn to the following cases and articles:
Grigsby v. Melville [1972] 1 WLR 1355 – right to store items in a cellar. Access to the
cellar however was only possible from the dominant land.
P. Luther, “Easements and Exclusive Possession” (1996) 16 Legal Studies 51
A. Hill-Smith, “Rights of Parking and the Ouster Principle after Batchelor v. Marlow”
(2007) Conveyancer & Property Lawyer 223
M. Haley & L. McMurty, “Identifying an Easement: Exclusive Use, De Facto Control and
Judicial Constraints” (2007) 58 N.I.L.Q 490
A. Goymour, “Easements, Servitudes and the Right to Park” (2008) 67(1) CLJ 20
M. Haley, “Easements, Exclusionary Use and Elusive Principles – The Right to Park”
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(2008) Conveyancer & Property Lawyer 244
Read as many of the post Moncrieff text-books as possible in the library e.g. R. Smith,
Megarry & Wade, and Gray & Gray. Do they maintain a proper distinction between
exclusive possession and exclusive use/occupation?

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Part Two – Creation of an Easement
A. METHODS FOR CREATION (OVERVIEW)
(1) Statute. – only look at very narrowly
(2) Prescription. – focuses on long usage
(3) Express and Implied, grant or reservation – most common, what we will be focusing
on
An easement or a profit is a legal interest in land provided that:

1) it is created (expressly or impliedly) by deed (s52(1) LPA 1925), by statute, or by
prescription and
2) its duration is of a fee simple absolute in possession of a term of years absolute (s1(2)
LPA 1925)
Where an easement has been created after 12 Oct 2003 by express grant or reservation by
a registered proprietor the interest must be registered to be a legal easement. Section
27(2)(d) LRA 2002 requires the registration of registrable dispositions where the servient
land is registered title. If the new dominant owner fails to register their new easement or
profit, that new easement or profit will only be equitable despite being created by deed,
and will only be equitable despite being created by deed, and will only be a minor
interest.
If the servient land is unregistered title, a legal easement will bind everyone, whereas an
equitable easement will need to be registered as a land charge to bind purchasers.
3.1 Express
A grant of an easement occurs where the servient owner gives a right over his/her land
when the servient owner sells part of his/her property. Whether it is a freehold or
leasehold estate the deed of transfer will expressly state that there is an easement over the
servient owners land. An easement created in this way is legal (though in registered land
the easement must be registered to have effect in law)
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Grant of an Easement (Unconnected to Sale of Part)

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Blackacre Whiteacre
(Dominant Tenement) (Servient Tenement)
←right of way→
for example two neighbours sitting down and deliberately creating an easement- express
wording included in the document which states what the easement is and all the terms
being set out
grant would be creating in favour of another party (in favour of the dominant tenement) –
granting is giving someone the right of a piece of land etc.
An ‘express’ reservation of an easement arises where the vendor sells part of their land
and reserves an easement over the land sold. If the vendor wishes to reserve an easement
then the vendor must do so expressly in the deed of transfer of the freehold or leasehold.
The courts are reluctant to imply a reservation. The reason for this lies in the general
principle that the grantor cannot derogate from the terms of their grant i.e. you cant give
with one hand and take away with the other. It is for the parties under these circumstances
to expressly agree to a reservation.
Since 1925, s65(1) LPA 1925 operates in such a way that the servient owner no longer
needs to execute the conveyance regranting the easement to the dominant owner, but the
servient owner is treated as having granted the easement to the dominant owner.
The interpretation of express reservations of easements sometimes gives rise to
difficulties. In St Edmundsbury Board of Finance v Clark (no 2) the Church of England
originally owned a church and churchyard, and the adjoining rectory and rectory grounds.
In 1945m the Church of England sold the rectory and its grounds to Clark.
The only access to the church building was across the rectory grounds, so the conveyance
to Clark included an express reservation of an easement of way along an existing track
across the rectory grounds to and from the church. Unfortunately, this reservation did not
make it clear whether this right of way was ‘on foot only’ or whether vehicles could use
the track. Clark, to the great inconvenience of weddings, funerals etc, insisted that the
right of way was ‘on foot only’.
Evidence established that in 1945 there had been at the churchyard end of the track two
solid gateposts only about 4 feet apart. This fact proved fatal to the Churchs claim. the
CoA held:
1) When interpreting an express grant or reservation of an easement, the physical
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circumstances of the pieces of land at the time of the grant or reservation had to be taken
into account

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2) If, but only if, the doubts were not resolved by looking at the physical circumstances,
the court should give the benefit of the doubt so the dominant owner and construe the
grant in favour of the dominant owner
The court (applying 1)) concluded that the narrow gap through the gateposts which
existed back in 1945 meant that the right of way was on foot only. In view of the physical
facts , rule (2) was not applicable. The Court reaffirmed the principle that where the
dominant owner reserves an easement, the law effectively recognizes that the servient
owner has regranted the right to the dominant owner. Where there is some ambiguity in
the construction of the reservation it is to be construed in favour of the dominant owner
and against the servient owner.
Applying the rule that in interpreting a grant one must consider the physical
circumstances at the time of the grant, his Lordship concluded that the narrow gateway
was fatal to the Churchs claim.
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Grant of an Easement on Sale of Part
Blackacre Whiteacre
←right of way→
Land sold to the Land retained by the

Purchaser. Seller
owner of Whiteacre has granted an easement over Whiteacre for the benefit of Blackacre.
easement may be granted expressly cos when sale takes place, the easement is included in
the sale transfer document
[Emmett v. Sisson [2014] EWCA Civ 64]
Reservation of an Easement on Sale of Part
Blackacre Whiteacre
←right of way→
Land retained by the Land sold to the

Seller. Purchaser.
Owner of Blackacre reserves the right over the land he will give away in favour of the
land he retains. – reserved when the seller is creating an easement over land, he will say
its in his favour and the purchaser will be subject to that easement (reservation). reserving
the benefit for themselves i.e. the owner is retaining the right to cross over someone elses
land for example.
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3.2 Implied (also discussed in greater detail in Part C)

- usually arise on the sale of the property
- reluctance to imply reservation cos there is an unequal bargaining position of the
parties (purchasers in the weaker position) and should be more supportive towards
the purchaser instead
- read the documents as though the document actually exists
B. AN EASEMENT MAY BE A LEGAL OR AN EQUITABLE INTEREST
Legal Easements
Permitted and limited in accordance with Law of Property Act 1925, s. 1(2):
“The only interests… in or over land which are capable of subsisting or being
created or of being conveyed or created at law are –
(a) An easement, right or privilege in or over land for an interest equivalent to an

estate in fee simple absolute in possession or a term of years absolute;”
In order to be a legal easement, must meet the above and must be created either:
1) By statute;
2) By prescription; or
3) By deed – Law of Property Act 1925 s. 52(1) 1 with the easement either being
expressly granted or reserved in the deed, or with the easement being granted or
reserved by implication under the deed. If the easement is created expressly, the
Land Registration Act 2002, s.27(1) & (2) requires that the easement be registered
in order to take effect at law;
Equitable Easements
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1
“All conveyances of land or any interest therein are void for the purpose of conveying or creating a legal
estate unless made by deed.”

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Will arise where:
1) Grantor only holds an equitable estate in land;

(the one who has the servient land is the grantor) and they can only have an equitable
estate
2) The duration of the easement is not for a term equivalent to a fee simple absolute in
possession or a term of years absolute;
-
3) The easement has not been created by deed (nor statute or prescription) but there is an
enforceable contract for the creation of an easement (express or implied) therefore will
only be equitable in this situation. – need to register on both the land that benefits from
the easement and also the one that is burdened by it
Combination of Walsh v. Lonsdale (1882) and Law of Property (Miscellaneous Provisions) Act
1989 – ‘equity looks on that as done which ought to be done’ – don’t just think if its not legal its
equitable, this case says you can only make the step of going from a contract to an equitable
interest by saying have you got all the terms written down and look at the availability of the
equitable remedy of specific performance, if its available then you have equitable interest
4) The easement has not been registered against the servient tenement’s registered title
and in the dominant tenements registered title (if any).
C. IMPLIED EASEMENTS
Where land which was formerly in common ownership is divided and sold, the law will
in certain circumstances imply an easement as passing with the deed, or contract for land.
An easement over the servient land may be created by being inferred or implied into the
deed of conveyance or lease. This would normally occur where the original dominant and
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servient tenements were in common ownership; the dominant land is then sold off (or
leased). It is important to remember that to be recognized as an easement, it must at the

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outset fulfill the criteria in Re Ellenborough Park, and the next stage is to consider
whether the easement has been created. There are four ways in which an implied
easement can be created:
1. necessity
2. common intention
3. Wheeldon v Burrows
4. s62 LPA 1925
When an easement is implied into a deed of conveyance, the easement acquires legal
status. The key point to note is that where a deed has been used the easement will be
legal; if the document of transfer does not comply with the requirements of a deed
(s52(1) LPA 1925, s1 LP(MP)A 1989) then the easement will only be recognized in
equity (this does not apply to s62 easements).
Easements of necessity and common intention can be created by a grant of reservation.

By contrast, implied easements under Wheeldon v Burrows and s62 can only arise by
grant, and not by reservation. The law is more willing to infer the grant of an easement
rather than infer the reservation of an easement. This is simply because an implied
reservation is usually unfair. An implied reservation involves selling a plot of land but
tacitly keeping an easement over that land. This runs counter to the principle that the
grantor should not derogate from the grant.
(i) Easements of Necessity – can be an implied grant and an implied reservation.
such an easement would arise on the sale of a ‘landlocked’ parcel of land, that is, a
vendor sells a part of their land which has no direct access to the public highway system.
otherwise, without the easement the land in question would be inaccessible. This test for
necessity is a strict one. It involves determining whether the land can be used at all
without the easement. means there is no alternative, but high degree of necessity needed.
Necessity is based on the implied common intention of the parties, that is, both parties
intended for there to be an easement but have not included it in the conveyance
(Nickerson v Barraclough).
Titchmarsh v. Royston Water Co. (1899)

plaintiff sold off all his land except one particular plot. he realized he couldn’t get off his
land without an easement so he sold the surrounding area and then thought how am I
gonna get off this land. argument was there has to be an easement of necessity that’s
granted to give access to the land. court said no you’ve sold off the land but actually to
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the side there is an access point to the road so its not as if youre without an alternative the

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land isn’t completely unusable so its difficult to use that land but its not impossible. it
isn’t landlocked there was an access point.
A further factor to take into account is whether there is an alternative access route. If an
alternative route exists, no matter how inconvenient it is for the dominant owner, this can
be fatal to a claim for an easement of necessity. E.g…..
Manjang v. Drammeh [1990] – possible access via a river.

- access to the land was possible but only by crossing a very wide River Gambia
-claim for an easement of necessity
- court said you have an access point so not landlocked
- CRITERIA FOR NECESSITY:
there has to be found….
1. a common owner of a legal estate in two plots of land
2. has to be established that access between one of those plots and the public
highway can be obtained only over the other plot
3. a disposition of one of the plots without any specific grant or reservation of a right
of access
Where the criteria for an easement of necessity have been fulfilled the purchaser of the of
the isolated ‘landlocked’ plot acquires an implied easement to cross the vendors retained
land. The vendor (servient owner) can fix the route of the easement, but it must be a
reasonably convenient route (Pearson v Spencer) and once selected it cannot be varied
(Deacon v South Eastern Railway).
The way of necessity can be used only for those purposes for which the dominant land
was being used at the time the necessity arose (ie at the time the land became isolated).
In Corporation of London v Riggs, Riggs acquired a ‘landlocked’ piece of farmland in the
middle of Epping forest. Epping forest was (and still is) the property of the City of
London. Riggs started building ‘tea rooms’ on his land. It was not disputed that Riggs had
a ‘way of necessity’ to and from his land. However, he could use the way for farming
purposes only. Neither contractors building the tea rooms, nor his future clientele, could
use the way. From this case its clear that the scope of necessity isn’t wide. The court
adopted a narrow interpretation limiting it ‘by the necessity at the time of the grant’
which was only for farming purposes. The courts will assess the extent of necessity at the
date of transfer and not some time in the future.
Sweet v. Sommer [2004] – vehicular access.

- doesn’t sit very well in this particular area
- about having an easement to drive your car up a path
- issue was whether theres an absolute necessity for a right of way so that you could use a
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car

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- court of first instance said theyre happy to give an easement but whether its necessity or
not was very unclear
- unclear whether the person had mobility issues but they made it clear that they wanted
to use a car to make full use of the land
- was it necessity? – to get to the shops you had to get there by car, or is it an intended
easement?
(ii) Common intention - can be an implied grant and an implied reservation.
There is an overlap between easement of necessity and intended easements, in both of

these cases necessity is a requirement. The broader scope of an intended easement was
noted in Pwllbach Colliery Co Ltd v Woodman, where Lord Parker of Waddington stated
that ‘the law will readily imply the grant of reservation of such easements as may be
necessary to give effect to the common intention of the parties to a grant of real property,
with reference to the manner of purposes in and for which the land granted or some land
retained by the grantor is to be used’.
To illustrate this point: if the dominant land was granted for a particular purpose known
to the grantor, any easement over land retained by the grantor which is absolutely
essential in order for that purpose to be carried out is implied into the grant in favour of
the grantee. The leading modern case involved a situation where the dominant land was
leased for a particular purpose, but the principle would equally apply where land was sold
for a specific purpose known to the grantor. A common intention easement is not limited
to a consideration of whether the property is inaccessible or unusable. When compared to
necessity, where an alternative route is fatal to a claim, an intended easement is broader
in its scope.
Sweet v. Sommer
The conveyance by which the land was sold contained no express right of way across the
retained land to reach the adjoining land. The owner of the retained land argued that no
right of way could arise as any implied right must be limited to what was strictly
'necessary'. Vehicles could have accessed the adjoining land from the highway if a
workshop was demolished. There was also a pedestrian right of way to the adjoining
land. Technically, therefore, the adjoining land was not landlocked. Hart J rejected this,
saying that in modern times it is in reality necessary for people to be able to access their
land by vehicles and not simply by foot, so that implication by necessity can extend to a
case such as this. (CA upheld his decision on a different basis-proprietary estoppel- and
declined to comment on this point).
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Hart J: The ability to destroy a physical barrier so as to allow vehicular access and the
presence of a footpath do not preclude the finding that the land is landlocked for the
purposes of implying an easement due to necessity. He bases the doctrine on necessity for
‘reasonable enjoyment’ of the property, unlike the ‘intentions’ test in Nickerson.
Wong v. Beaumont Property Trust Ltd [1965]

- a landlord had granted a lease of the basement of premises it owned to Blackaby.
Blackaby covenanted:
 to run the premises as a ‘popular restaurant’
 to comply with the Public Health Regulations
 to eliminate ‘all noxious smells’
Blacakabys attempts to run the premises as an English restaurant were a miserable
failure. He assigned the lease to Wong, who converted the restaurant to Chinese food,
with resounding success. However, the tenant upstairs complained about the dreadful
‘noxious smells’ coming from the basement. Public health officers were called in. They
told Wong that unless a ventilation shaft was run from the basement up the back of the
above-ground floors of the building, Wong would have to close down.
The landlord refused to let Wong put up the ventilation shaft, so Wong commenced
proceedings, claiming that he had an easement entitling him to put up a shaft. The County
Court judge found as a fact that, at the time the lease was granted to Blackaby, a
ventilation shaft was necessary for the restaurant to function successfully and eliminate
smells. The fact that neither of the original parties realized this need was irrelevant. It was
held therefore that Wong was entitled to his ventilation shaft. The CoA affirmed this
conclusion.
Donovan v Rana [2014] EWCA Civ 99

- Mrs Donovan sold a building plot with an express right to pass over a small plot of land
which connected the building plot to the road ‘for all purposes connected with the use
and enjoyment of the property but not for any other purpose…’
- the owners of the building plot fell into financial difficulties and sold it to Mr and Mrs
Rana
- in order to connect the utilities’ main services from the road to their building plot, Mr
and Mrs R allowed workmen to dig up the connecting plot, owned by Mrs D, between the
Ranas building plot and the road.
- CoA, in giving judgment in favour of the Rs, held that an easement was necessary for
the parties’ intended purpose ie for a dwelling house to be built on the plot with the
necessary connections to the main utilities
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(iii) The Rule in Wheeldon v. Burrows (1878) – can only be for an implied grant.
right to light case – the land was owned by one person ans they had a workshop on the
land. the workshop had windows and that whole plot was owned by one person. then the
owner decided to sell the plot and the person who purchased it decided to build a
hoarding so the effect of building this was it affected the amount of light going into the
property. there was a claim for the person who owned the property that I have an
easement for the right to light. before the land was sold, the owner of the property had a
quasi-easement of right to light cos at the time before the property was sold, those two
plot belonged to that same person so they couldn’t say they were exercising a right over
someone elses land. unfortunately the claim for the right to light was unsuccessful and
the court said if you want to continue to enjoy the right to light, you have to reserve it. the
owner of the workshop enjoys the right to light but its being streamed through the other
property which would effectively be the servient land but the servient land had been sold
to someone else. if you want to continue the right once the land has been sold, you have
to reserve the right to do so. so when land with the hoarding was sold, at that time in the
negotiations it should’ve been made clear I as the owner of the workshop and owner of
the dominant land want to continue to have the right to enjoy the light that’s coming from
your property into mine. so the court said no if you wanted to reserve this particular
easement you should’ve made it clear in the outset and it should’ve been expressed in the
conveyance.
The two rules for implied grant of easements discussed above involve creating an
easement as if ‘out of thin air.’ Before the sale (or lease) of the dominant land there is not
the slightest sign of there being an easement in favour of the dominant land.
The rule in Wheeldon operates in a very different way.
Quasi-easement = arises where the two plots are in common ownership. The common
owner exercises over one plot for the benefit of the other plot, a right which could have
been an easement had the two plots been in separate ownership.
The rule in Wheeldon requires that before the dominant land was sold (or leased) by the
person who originally owned both pieces of land, a quasi-easement already existed in
favour of what becomes the dominant land. If certain conditions are fulfilled then, on the
sale or lease taking place, the quasi-easement is converted into an easement.
court went on to consider what if you were in a position of granting the right …this is
where LJ said…
This rule was explained by Thesiger LJ….
“on the grant by the landowner of a tenement of part of that tenement as it is then used
and enjoyed, there will pass to the grantee all those continuous and apparent easements
(by which, of course, I mean quasi easements), or, in other words, all those easements
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which are necessary to the reasonable enjoyment of the property granted, and which have
been and are at the time of the grant used by the owners of the entirety for the benefit of

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the part granted.” Thesiger L. J. – the rule in Wheeldon only applies to grants and not to
reservations of easements
This rule does not apply to implied reservations. It only applies on grant in favour of the
grantee. This follows the principle that we mentioned previously: the grantor cannot
derogate from their grant.
Requirements for the rule:
(1) Immediately prior to the transfer (sale or lease), the quasi-easement was used for the
benefit of what becomes the dominant land (+ dealing with a grant and not reservation)
(2) The quasi-easement was ‘continuous and apparent’ – provided that it is regularly used
and provided that there is physical evidence on the plot of land involved of the existence
of the right. for example, there might be a worn track leading across the ‘servient’ land
towards the ‘dominant’ land. Even such matters as drains could be ‘apparent’ if there
were such things as gratings and manhole covers on the ‘servient’ land.
(3) The quasi-easement must be ‘necessary for the reasonable enjoyment’ of the (alleged)
dominant land
Wheeler v. Saunders [1994] – the alternative route was virtually just as convenient as the
one being claimed by the implied grant. The court rejected the claim to an implied
easement.
in this case we have a house and a farm in common ownership (one person owns the
complete plot). the house can be reached using either routes A or route B, one of which
(a) passes the farm. whilst that plot is in common ownership, we can categorise the use of
that path as a quasi-easement cos for an easement you have to go across another persons
land and here its just enjoyed by the one person. the land with the house was sold but
there was no express grant with regards to a right to cross over the land where the farm
was. there was claim by the new owners that they should have an easement over the
farmyard cos they knew previously the owner was allowed to use both routes. the issue
before the court was wheeldon v burrows apply, and if it does would it upgrade that quasi
easement into a full easement. in this situation the seller holds on to the servient land so
he would be granting a right so he would have to put up with the burden of that particular
easement and if you think about it whilst in common ownership, this particular route was
being used and its continuous and apparent. but the court had to consider can we grant an
easement using the requirement under wheeldon? its continuous and apparent and we
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know it’s a grant but necessity?? this is the point the court thought well if you’ve bought
the house and youre using the track B, you can get off your land you just have to go left.

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but what about A is it actually necessary? court thought about the word necessary, is it
just merely convenient to travel past road A or is it necessary? they decided it was merely
convenient and not necessary cos you have an access point in part B already.
Millman v. Ellis [1995] – the alternative route was dangerous and would involve making
a detour.Court held that a claim for an easement succeeded under Wheeldon v Burrows
cos it was necessary to avoid using the dangerous alternative route. Moreover, the claim
succeeded even tho the dangerous alternative route was by virtue of an easement
expressly granted by the vendor, in the conveyance of the dominant property, over other
land which he retained
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D. LAW OF PROPERTY ACT 1925, SECTION 62(1)
This section is a word saving device since it implies certain words automatically into a
conveyance of land ensuring that it passes all easements and similar rights.
“a conveyance of land shall be deemed to include and… shall operate to convey with
the land… all liberties, privileges, easements, rights and advantages whatsoever,
appertaining… to the land, or at the time of the conveyance… occupied or enjoyed
with… the land or any part thereof”
once you know whether its an express or implied easement, youll know how to protect it
and if to protect it and we get some form of explanation under s27(7)
Land Registration Act 2002, s. 27(7) – “… reference to express grant does not include
grant as a result of the operation of section 62 of the Law of Property Act 1925. ” – that
doesn’t tell us whether the easement created under s62 is expressed or implied so we
don’t know that particular status but we do know that you don’t need to register an
easement created under this section
S.62 (1) in operation

the courts have given s62 a strange interpretation, under which a conveyance or lease of
land may convert an existing privilege type of ‘nebulous right’ into a full easement.
upgrading of formal rights into an easement which is done through the conveyanace
International Tea Stores Ltd v. Hobbs [1903] – a case under the predecessor to s.62.
Licence given to a tenant to use a roadway on the landlord’s land. Reversion of the lease
conveyed to the tenant. – permission had been granted, and on the conveyance of a fee
simple the permission was converted to an easement. The facts in this case involved a
landlord who owned two houses adjacent to each other. The landlord occupied one
property and the tenant the other. The landlord gave the T permission to use a short cut
across his land. the T purchased the house from the landlord. The conveyance didn’t
include any reference to a right of way across the yard. The court held that the permission
to cross the yard was by virtue of s6 Conveyancing Act 1881 (now s62 LPA 1925) now a
right of way which passed to the claimant at the date of the conveyance. It was previously
a privilege that had been enjoyed with the property prior to the conveyance.
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Wright v. Macadam [1949] – Wright granted a weekly tenancy of a flat with permission
to use a shed for storing coal. She was then granted a longer tenancy in writing. –

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concerned an apparently trivial matter which gave rise to a very important point of law.
The D leased a top-floor flat to Mrs Wright. While this first lease was still running,
Macadam gave Mrs Wright permission to store her coal in a coal shed situated in the
garden to the small block of flats. when Mrs Wrights first lease ran out, it was renewed
for a further period. At the time of renewal nothing was said about the coal shed. Later,
during the running of the second lease, Macadam demanded that Mrs Wright pay one
shilling and sixpence per week for the use of the coal shed. She refused. The CoA held
that, on the renewal of the lease to Mrs Wright, there was implied into the renewed lease
an easement to store coal in the coal shed. The crucial point (fatal from Macadams POV)
was the existence of the privilege (i.e. the permission to store coal) at the time the lease
was renewed. The statutory magic of s62 therefore converted Mrs Wrights privilege into
a full easement.
requirement of diversity of occupation – you could have a plot of land owned by oen
person but it will be occupied by two different people, some sort of permission has been
given to a party to confer a benefit and then theres a sale or a renewal of a lease and with
the creation of that legal document, that permission is transformed into a legally implied
easement.
the informal permission has formed into a formally recognised easement
(implied easements don’t need to be registered btw)
It should be stressed that for s62 to convert a privilege into an easement, all that is
necessary is that the ‘privilege’ exists at the time of the relevant conveyance (or lease).
Under the s62 rule there is no requirement that the privilege be ‘continuous and
apparent’. Neither is there any requirement that the privilege be ‘necessary for the
reasonable or convenient enjoyment’ of the dominant land.
Goldberg v Edwards – Edwards owned a main building, together with an annex at the
back of the main building. He leased the annex to Goldberg. That lease included an
express grant of a right of way permitting all visitors to the annex to gain access using an
open yard at the side of the main building. While this first lease was still in force,
Edwards gave permission for visitors to the annex to pass through the hallway of the
main building. The first lease expired, but Goldberg was granted a new lease, with the
same express clause regarding using the open yard at the side. The new lease made no
express mention of the hallway but Goldberg claimed that the new lease impliedly
granted him an easement to use the hallway. Goldbergs claim under Wheeldon v Burrows
failed, because the CoA ruled that a right to use the hallway, while it had its advantages,
was not ‘necessary for the reasonable or convenient enjoyment’ of the annex. Despite
losing on this issue, he won the case; he was held to have acquired (on the renewal of his
lease) an implied easement to use the hallway under s62
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Requirements for the section’s operation

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(i) The right must be capable of being an easement

 the right claimed, by its nature, must be capable of being an easement – still
means you have to satisfy the requirements of Re Ellenborough Park
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(ii) Competent grantor

 section 62 only operates where the claimed right existed at the time of the
conveyance. The claimed right must be capable of being transferred by a
competent grantor.
 the grantor must be in a position to grant an easement so they will own a fee
simple absolute in possession or they will have a leasehold so from that if theyre
holding an estate in land, theyre in a position to grant an easement.
(iii) The need for a conveyance.

 a legal lease counts as a ‘conveyance’ but neither an equitable lease nor a contract
for the sale are ‘conveyances’ for the purposes of s62 LPA 1925. It is important to
remember that a legal lease, apart from a lease of less than three years, is created
by deed or registered disposition.
 if you have a conveyance its going to include those rights, liberties, privileges and
easements
 upon a transfer or granting of an estate, this is where you find the easement being
implied into that particular conveyance
 if you don’t want s62 to operate, you must expressly state so. you can do so in
that conveyance. ideally if you don’t want s62 to operate what you would do is
before any sale takes place or renewal of a lease, youll tell the person whom you
have given permission to to cross your land etc that they cant do so anymore and
do it in writing too to make sure they received it so you negate that permission so
then s62 doesn’t operate but if you leave it to the conveyance make sure you
clearly express you don’t wanna use s62.
(iv) Diversity of ownership of the dominant and servient tenement?
v) Section 62 applies only to convert ‘privileges’ into easements

 unlike Wheeler, s62 cannot apply to quasi easements, because prior to the
conveyance there would be no diversity of ownership or occupation
 following the hoL judgement in Sovmots Investments v Secretary for the
Environment, approving Long v Gowlett , s62 will only operate where there is
prior to the conveyance diversity of occupation, the dominant and servient land
must be occupied by two different people
There is a debate about whether or not section 62 can create an easement out of quasi-
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easements. If it can, do we still need the rule in Wheeldon v. Burrows?

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Long v. Gowlett [1923] – land divided and sold. Question was whether there was an
easement to go onto one of the plots to carry out work on a river bank. – if you have a
right or privilege it can be transferred into an easement by s62. this was an area of land
that ran alongside a river in Cambridgeshire. the owner of the land been in the habit of
entering the river at one particular point to clean the river bank. the land was divided and
plot 1 was sold off. the claim was could this person still use s62 in order to get to the
river and cross the land to get to that point. the issue was the court had to consider what
actually occurred before the plot had been sold, well it was actually under the ownership
of one person and we know if you own one plot and youre crossing the land to that point
of entry then youre only crossing your own land that’s only a quasi easement. the court
said but the thing is normally speaking when we look at the operation and wording of
s62, it makes it very clear that there has to be a right or privilege so there is this informal
permission being given to then change into an easement but there was no evidence of this
permission cos the land was owned by one person previously. conclusion was s62 only
operates if you initially have some right or privilege as per s62 which has to exist before
the conveyance to then be caught by that particular section (62). in essence it reinforced
the point that if you have a liberty, privilege, permission youre allowing someone to walk
across your land which means theres gonna be a servient and dominant tenement at some
point and theres gonna be diversity of ownership.
supported by…
Sovmots v. Secretary of State for the Environment [1979]

- a London borough council made a compulsory purchase order of a number of
maisonettes in the centre of London. The council argued that certain ancillary rights
passed on conveyance (e.g. water, electricity etc) of the land, and these must be taken to
have passed with the maisonettes, otherwise it would not be possible to use these
maisonettes for residential purposes. From the time the maisonettes were built to the date
of the compulsory order, these maisonettes were not occupied. The HoL held that the
ancillary rights didn’t automatically pass with the maisonettes.
“… when land is under the one ownership one cannot speak in any intelligible sense
of rights, or privileges, or easements being exercised over one part for the benefit of
another. Whatever the owner does, he does as owner…” Lord Wilberforce . – clearly
emphasizes the key requirement of s62 that you need diversity of ownership
otherwise you own the plot how can you talk about permissions over your
own land
There are two possible exceptions to the diversity of occupation rules under s62
LPA 1925. The first is where this does not apply to easements of light. Second , it
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would only arise, according to Peter Gibson in the case below, when the…..

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P & S Platt v. Crouch [2003]

crouchs owned the hotel and the path etc etc moorings case – hotel was sold to Platt and
the crouchs still lived on the property and issue of easement about parking your boat and
a right of way. argued on the basis of s62 cos it’s the easiest form of an implied easement.
when the hotel was sold to Platt the crouchs owned it. so there was no diversity of
ownership. in this case the court refused to follow any arguments that just cos theres no
prior diversity of ownership that precludes you from establishing an easement. the court
said its not a crucial factor and s62 should operate .
“The rights were continuous and apparent, and so it matters not that prior to the sale of
the hotel there was no diversity of occupation of the dominant and servient
[tenements].” Peter Gibson L. J.
court here said if you don’t have diversity of occupation or ownership its not tragic all you
need is that the right is continuous and apparent.
Wood v Waddington [2015] EWCA 538 - endorses the approach adopted by Platt in
determining that prior diversity of occupation is not a strict requirement under s62
provided that the right is continuous and apparent. – court appears to endorse the
approach adopted above in determining that prior diversity of occupation is not a strict
requirement under s62. The reasoning of the court rests on its interpretation of
‘easements, rights and advantages… enjoyed with … the land’ – in this case all that the
lawyers did is say the easement will be this particular path etc so laid out quite clearly
what the intention was and what the easement would be to avoid s62 but the court said it
has to be expressly clear that you don’t want s62 to operate.
effect??  they’ve muddled all the rules.
for s62 all you need to show is that its continuous and apparent
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Part Three – Effect of a Transfer Upon an Easement
A. TRANSFER OF THE DOMINANT TENEMENT
 easements automatically pass on transfer of the dominant land

 the benefits as far as the courts are concerned doesn’t cast a negative burden on a
party a benefit should be seen as a bonus
B. TRANSFER OF THE SERVIENT TENEMENT WHERE TITLE IS

UNREGISTERED
1) Legal Easements
- as a legal interest, binding upon all people
2) Equitable Easements
Class D(iii) – must register it as a land charge against name of grantor (against the
burdened estate) and if you don’t the act is very clear then that easement will be void
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C. TRANSFER OF THE SERVIENT TENEMENT WHERE TITLE IS

REGISTERED
1) General
Land Registration Act 2002 section 29 (Effect of Registered Disposition): - ensures

priority
“(1) If a registrable disposition of a registered estate is made for valuable

consideration, completion of the disposition by registration has the effect of
postponing to the interest under the disposition any interest affecting the estate
immediately before the disposition whose priority is not protected at the time of
registration.
(2) For the purposes of subsection (1), the priority of an interest is protected-
(a) in any case, if the interest-
(i) is… the subject of a notice in the register,
(ii) falls within any of the paragraphs of Schedule 3…”
2) Legal Easements
- entry of notice on register of title s38 LRA 2002
- (dominant land – easement requires registration under s27(2)(d) LRA 2002)
Express:
parties sitting down writing it down on the deeds and setting out the conditions etc. they
have to put a notice on the register of title for the burdened land (on the servient land you
enter a notice s38)
these are the ones that are created after the commencement of the LRA 2002
Implied:
Land Registration Act 2002, Schedule 3 (Interests which override a registered

disposition), Paragraph 3: - deals with implied easements only (those created after the
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commencement of LRA 2002 are legal easements but will have to be subject to certain
requirements)

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“(1) A legal easement… except for an easement… which at the time of the disposition -
(a) is not within the actual knowledge of the person to whom the disposition is
made, and
(b) would not have been obvious on a reasonably careful inspection of the land
over which the easement or profit is exercisable.
(2) The exception in sub-paragraph (1) does not apply if the person entitled to the
easement… proves that it has been exercised in the period of one year ending with the
day of the disposition.”
what happens to the ones before the LRA 2002? udner the old law, those legal easements
and equitable easements were overriding then and continue to override now….
if its equitable easement you need to make sure you protect it by putting notice on
register of title
Land Registration Act 2002, Schedule 12 (Transition):
“9 (1) This paragraph applies to an easement… which was an overriding interest in

relation to a registered estate immediately before the coming into force of Schedule 3,
but which would not fall within paragraph 3 of that Schedule if created after the
coming into force of that Schedule.
(2) In relation to an interest to which this paragraph applies, Schedule 3 has effect as if
the interest were not excluded from paragraph 3.
3) Equitable Easements
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Covenants
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1. INTRODUCTION
- COVENANTS ARE A WAY OF RESTRICTING YOUR USE OF LAND

- RECOGNITION THAT LAND ISNT YOURS – CANT SAY YOURE AN ABSOLUTE OWNER COS
YOURE SUBJECT TO EXTERNAL FORCES AND THE RESTRICTION LIES IN THAT YOU CANT DO
WHAT YOU WANT WITH YOUR HOUSE, YOU CAN DO CERTAIN ASPECTS LIKE BUILDING A
CONSERVATORY BUT THERES RESTRICTIONS AS TO THE SIZE ETC, AND ALSO MAY BE A
REASON WHY IN A PARTICULAR AREA YOU CANT HAVE A CARAVAN OUTSIDE A PROPERTY
ETC ETC
- agreement between two or more parties in a particular area to perhaps maintain that
look and feel and be a social and community balance in an area to prevent houses being
built etc
- we have to allow private individuals the right to choose how the land should be used,
they may want to maintain the look of a particular area etc
- in some sense the law has chosen to intervene in this area cos you can have private
agreements which are contracts but the problem with that is the contracts cant bind the
third parties so wouldn’t bind successors in title so the law has recognized you have to
infuse this agreement with a proprietary status
- private arrangements between people
What is a covenant?
 simple promise that’s contained normally in a deed either to do something or not
to do something. contractual agreement between two or more parties.
What is a positive covenant?

 requires you to do a specific act or provide a specific service
 can be potentially enforceable under freehold covenants but there are certain
requirements that you need to fulfill
What is a restrictive covenant?

 most popular type of covenant
 not allowed to do something so youre restraining the landowner from engaging in
a particular activity
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EXAMPLE:

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Ann and Betty live next door to each other in White Cottage and Black Cottage
respectively. Betty has agreed with Ann that Betty will not let her boundary wall fall
into disrepair (THIS IS POSITIVE COS YOU HAVE TO MAINTAIN IT), and that she
will only use Black Cottage for residential purposes (THIS IS WHERE YOURE
RESTRAINING THE LAND OWNER FROM USING THE PROPERTY IN A
PARTICULAR WAY).
The covenantor is…

 the one that makes the promise
 has the burden of the actual covenant and will be bound by it
The covenantee is…

 enjoys the benefit of the covenant
the party who has the burden or the party who has the benefit (if you cant remember the
terms)
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QUESTIONS OF ENFORCEMENT
 Enforcement between the original parties.

 “Has the benefit run with the land?”
 “Has the burden run with the land?”
 “Have the benefit and burden run with the land?”
(i) Covenantee claiming the benefit of the covenant, and covenantor being bound by the
burden.
Covenantee A Covenantor B
- they are the original parties to that particular agreement

- if theres a breach with regards to the covenant (covenantor B isn’t upholding their
agreement) can cov A bring an action against cov B? cos theyre the original parties to the
contract yes that should be straight forward.
(ii) Successor in title to the covenantee claiming the benefit of the covenant against the
original covenantor. ‘Has the benefit of the covenant run with the original covenantee’s
land?’ – i.e. has the benefit been transmitted from A to C, if we’re talking about a
successor in title we aren’t talking about the original parties so the successor will be
trying to enforce the covenant against covenantor B but cos cov B was orginal party you
can do so.
Successor C
(iii) The original covenantee claiming the benefit of the covenant against a successor in
title to the covenantor. ‘Has the burden of the covenant run with the original
covenantor’s land?’ – is successor D restrained from doing something?
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Successor D
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(iv) Successor in title to the covenantee claiming the benefit of the covenant against a
successor in title to the covenantor. ‘Have the benefit and burden run with the lands of
the original covenantee and the original covenantor.’
Successor C Successor D
 ENFORCEMENT BETWEEN ORIGINAL COVENANTOR AND

COVENANTEE
 Always enforceable between original parties.

 Can third parties enforce the covenant? – when it comes to the original parties, its
quite easy but with third parties, contract law would suggest if you aren’t a party
to the contract, you cant enforce it so we have to check to see what the position is
in land law in regards to covenant.
 s.56(1) Law of Property Act 1925
– Re Ecclesiastical Commissioners for England’s Conveyance [1936] Ch.
430
– ‘What is necessary to consider is the true construction of the
conveyance . . . in order to ascertain whether any persons, not parties
thereto, are described therein as the covenantees’ per Luxmore J.
 s.1 Contracts (Rights of Third Parties) Act 1999
Identifying the covenantee(s):
“Betty covenants with Ann to only use her land for residential purposes” – can Claire (a
neighbour who holds Redacre) seek to enforce the covenant against Betty? – Betty has
the burden and Ann has the benefit they are the original parties but Claire wants to
enforce the covenant against Betty. Claire doesn’t seem to fit into the picture at all and
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isn’t privy to the contract so the answer is very simple, she cant enforce the covenant. if

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she was named in the document then theres a possibility she could be viewed as one of
the original parties but here she wasn’t.
“Betty covenants with Ann to maintain Claire’s fence” – for a covenant entered into pre-
10th May 2000, can Claire seek to enforce the covenant? – Betty is original covenator and
she covenants with Ann who has the benefit, describes who is gonna benefit from this
particular covenant (Claire too). Claire is mentioned this time and the courts may at time
recognize this third party but here the parties to the actual agreement are Betty and Ann
and theyre just saying theyre looking after Claires fence, shes getting the benefit but
that’s all it is.
“Betty covenants with Ann and Claire to maintain Claire’s fence” – for a covenant entered
into pre-10th May 2000, can Claire seek to enforce the covenant? – the wording is
completely different here from the last two. the with says with Ann and Claire so the
correct wording is being used here now for them to both enforce the covenant.
Law of Property Act 1925, s. 56(1):
“A person may take an immediate or other interest in land or other property, or the
benefit of any condition, right of entry, covenant or agreement over or respecting
land or other property, although he may not be named as a party to the conveyance or
other instrument.”
- you don’t actually have to name a person for them to enforce it against the
covenantor but you have to come within the general definition of a party
limitation = the way this provision operates is that a person who claims to fall
within the generic description must meet that description on the date the
covenant was agreed
Re Ecclesiastical Commissioners for England’s Conveyance [1934]

- said
‘What is necessary to consider is the true construction of the conveyance . . . in order to
ascertain whether any persons, not parties thereto, are described therein as the
covenantees’ per Luxmore J. – so they might not have originally been a party but are
there persons within that generic class that would be identified? gets rid of the need to
identify Claire specifically for example.
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“Betty covenants with Ann and the owner for the time being of Redacre to use her land
only for residential purposes” – can Claire as owner of Redacre enforce the covenant? –
Betty is the original covenantor, Ann is the original covenantee, the owner for the time
being… as long as Claire is in the property at the time the agreement is made, she will
fall within that class of persons. she has to be an owner when the agreement is concluded.
she can enforce the covenant against Betty and Ann cos theyre both original parties.
For covenants entered into after 10th May 2000, Contracts (Rights of Third Parties) Act
1999, s.1 becomes important:
“(1) … a person who is not a party to a contract (a “third party”) may in his own
right enforce a term of the contract if –
(a) the contract expressly provides that he may, or

(b) subject to sub-section (2), the term purports to confer a benefit on him.
(2) Subsection (1)(b) does not apply if on a proper construction of the contract it
appears that the parties did not intend the term to be enforceable by the third party.
(ONLY APPLIES FOR BENEFIT, NOT FOR BURDEN, SOMEONE WHO WANTS
TO ENFORCE A BENEFIT COS THERES BEEN A BREACH)
(3) The third party must be expressly identified in the contract by name, as a member
of a class or as answering a particular description but need not be in existence when
the contract is entered into.” – what you can see is a broadening of who can
enforce a benefit of a covenant. you don’t have to be necessarily identified by
name.
the Third Party Act only applies to covenants created after May 2000 , if before that
time, only s56 operates.
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ENFORCEMENT BETWEEN ORIGINAL COVENANTOR AND SUCCESSOR TO

THE ORIGINAL COVENANTEE
‘Has the benefit of the covenant run with the original covenantee’s land?’
Successor C
Smith and Snipes Hall Farm v. River Douglas Catchment Board [1949]
(1) The covenant must touch and concern the covenantee’s land;
(2) The covenantee must have a legal estate in land;
(3) The benefit must have been intended to run with the land; and
(4) The land to be benefited must be identified in the document containing the covenant
or identifiable by extrinsic evidence.
As to ‘touching and concerning’ the covenantee’s land:

 transmission with the land, running with the land, not a personal covenant
 how do you know if a covenant affects the land? cant be personal benefit for the other
party – how the land is affected is it changing the way we use the land.
 also have to think about the distance between the dominant and servient tenement cos
the dominant tenement is the dominant land that has the benefit so wheres the land
that’s being burdened? cos if theyre at a distance, you cant really say that adds any
benefit to the land.
As to the covenantee having a legal estate:

 the estate held by a successor in title has to be either a leasehold estate or a
freehold estate i.e. has to be legal.
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As to the benefit being intended to run with the land – Law of Property Act 1925, section
78(1) :
“a covenant relating to any land of the covenantee shall be deemed to be made with
the covenantee and his successors in title and the persons deriving title under him…”
 ENFORCEMENT BETWEEN SUCCESSOR TO THE ORIGINAL

COVENANTOR AND THE ORIGINAL COVENANTEE
‘Has the burden of the covenant run with the original covenantor’s land?’
Successor D
a) Position under the Common Law
Austerberry v. Oldham Corporation (1885)

- NO
- the burden of any covenant cannot run with the land
- the only time it could run with the land is if you have for example a positive covenant
but when we’re looking at negative covenants, the burden does not run with the land
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Examples of indirect means of enforcement
(i) Indemnity covenants

- the original covenantor can always be sued in the event of a breach of a covenant.
- this would apply even tho the original covenantor isn’t owning the land
- in order to prevent any issue with regards to being sued, if Cov B is sued by C, theyre
gonan have to find a way to recoup their money so cov B will enter into an agreement
when selling the property to D that in the event that they are sued for a breach of
covenant, they will be able to claim the money back from D and D when they sell will
obtain an agreement with E etc etc
- that’s fine if the chain works but sometimes theres a broken link cos some people don’t
wanna pay for indemnity insurance so then F wouldn’t be able to claim back the money
they’ve had to pay out cos of the indemnity etc
- not very popular if youre buying property
- is one way of enforcing positive covenants
(ii) Doctrine of Benefit and Burden

- court says if you take the benefit of a covenant in relation to a particular land right,
youre expected to perform the other requirement and that tends to be the burden
Halsall v. Brizell [1957]

- large area of land which was owned by a building developer who built a large number
of home and also built some roads so you could have access to the properties
- he sold a number of the houses but he kept the roads
- in return for looking after the roads, the residents had to pay regular contributions to the
maintenance of these roads
- dispute that arose cos one of the residents didn’t wanna pay for this, and the court said
in this instance the covenantor has voluntarily taken the responsibility upon themselves to
repair and maintain the roads
- if youre using the roads and youre enjoying it as a local resident, you have to meet them
half way you have to pay towards the contribution towards the cost, given that it was in
the agreement you have the benefit of the roads you also need to contribute to the costs
- if youre enjoying the benefit, theres a way of enforcing the burden
- using the road and also paying towards the maintenance of the road so clear benefit and
burden
issue is whether the benefit and burden have to be similar/the same/correspond in some
way?....
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Rhone v. Stephens [1993]

- large house divided into two dwellings
- owners sold one part and held onto the other
- owner covenanted to keep in repair the part of the roof which extended over the
purchasers bedroom
- also apparent from the conveyance that both houses received the right to have structural
support from an easement (so you have a burden to maintain the roof and both had the
benefit of support so you could argue theres a benefit and burden that are linked together
cos relate to one property_
- roof fell into disrepair so an action to enforce the promise that the other party would
maintain the roof
- court didn’t think the doctrine of benefit and burden could apply here they said the two
things were not linked, one is associated with the repair of the roof and the other is about
structural support there was no direct link
- saying there has to be an element of reciprocity
Thamesmead Town Ltd v Allotey (2000) 79 P & CR 557

- tried to clarify the enforceability of a positive covenant
- said there’s a link you have to establish but what do you need to satisfy for the positive
covenant to run
“. . . there are two requirements for the enforceability of a positive covenant against a
successor in title to the covenantor. The first is that the condition of discharging the
burden must be relevant to the exercise of the rights which enable the benefit to be
obtained. . . The second is that the successors in title must have the opportunity to choose
whether to take the benefit or having taken it to renounce it, even if only in theory, and
thereby to escape the burden and that the successors in title can be deprived of the benefit
if they fail to assume the burden.” (per Peter Gibson LJ) – when you have this situation
with a positive covenant, the successor in title in theory should at least have the option to
choose whether they accept having the burden or not its up to them
Wilkinson v. Kerdene Ltd [2013] EWCA Civ 44

- reinforcing Halsell case
- holiday home which had fallen into disrepair
- Kerdene was the owner of the common parts e.g roads, paths, tennis courts and the
bungalow owners were granted rights to use the common parts but they had to pay a fixed
charge
- issue was whether Kerdene was in the position to recover the cost of repairs from the
successors in title
- court said yeah if youre using the paths and roads etc and you’ve been asked to pay a
contribution towards the maintenance theres that direct link
- has to be some real relation between the right granted
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Elwood v. Goodman [2013] EWCA Civ 1103

- in relation to negative covenants, you have to place them onto the register of title or itll
be registered as a land charge
The Court reiterated the three conditions for the burden of a positive covenant to be
enforceable against the covenantor's successor in title:
← - the benefit and burden must be conferred in or by the same
transaction
← - the benefit must be reciprocal to/conditional on the burden
- the successor in title must have had the opportunity of rejecting or
disclaiming the benefit
positive covenant is only regarded as a personal obligation therefore no requirement to

register it, negative one is an interest to land which needs to be registered to ensure it will
bind successors in title
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b) Position under Equity
 restrictive covenants can run with the land

 positive covenants will not run with the land
Tulk v. Moxhay (1848)

- a fee simple owner of land in Leicester Square who sold the land to mr Elms
- Elms covenanted in the conveyance, for himself, his heirs, and assigns that he would
‘keep and maintain the said piece of ground…. uncovered with any buildings, in neat and
ornamental order’
- the land was later sold by Elms to the defendant
- that conveyance did not recite the covenant, but the D admitted that he had actual notice
of it in any event
- the D intended to build on the land
- the court granted an injunction against the D to restrain a breach of the covenant
The rule in Tulk v Mohay:
Modern day conditions for the running of the burden in equity:
(1) The covenant must be restrictive;
(2) The covenant must be made for the benefit of the covenantee’s land;
(3) The burden of the covenant must have been intended to run with the covenantor’s
land; and
(4) The covenant must be duly protected by registration.
As to (1) the covenant being restrictive:

The observance of the covenant must not necessitate expenditure on the part of the
servient owner. (Haywood v. Brunswick Benefit Building Society (1881))
Rhone v. Stephens [1994]
“For over 100 years it has been clear and accepted that equity will enforce negative
covenants against freehold land but has no power to enforce positive covenants against
successors in title of the land.” Lord Templeman.
As to (2) whether the covenant is made for the benefit of the covenantee’s land:
(i) covenantee and successors must have retained an interest in land; plus
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(ii) covenant touches and concerns the land.

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London C.C. v. Allen [1914]

- the LCC sold a large amount of land to Mr allen, a builder
- with respect to one small part of the land, Mr Allen covenanted not to build upon it
- the small parcel was intended as an open space for the local residents
- the LCC retained no other land in the vicinity
- Mr Allen sold the small parcel to his wife, who commenced building work
- the LCC sought an injunction against Mrs Alllen, which was refused
- the council had no dominant land, so it could not claim it had the benefit of a restrictive
covenant
it follows that a restrictive covenant cannot exist ‘in gross’, that is, independently of
dominant land. For the burden of a restrictive covenant to run with the servient land there
must be a dominant tenement at the date of the covenant.
As to (3), burden intended to run with the covenantor’s land:
if its not in the deed etc….
Presumed intention under Law of Property Act, section 79(1) subject to contrary
indication contained in the document creating the covenant. – burden of the covenant is
intended to run and will be automatically presumed
Morrells of Oxford Ltd v. Oxford United FC Ltd [2001]

two clauses….
Clause 2 "the [purchaser] and its successors in title will at all times hereafter observe and perform
the restrictions following in relation to the property", including a covenant that it would use it
only as a public house. – clear indication that s79 is to run with the land, the burden is meant to
continue so clear way to say we want it to continue
Clause 3(a) for the benefit of the land conveyed "the vendors will not at any time hereafter permit
any land or building erected thereon within half a mile radius of the land hereby conveyed which
is in the ownership of the vendors at the date of this conveyance" to be used as a brewery or club
or licensed premises. – only talks about vendors, appears to exclude the operation of s79 and
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if excluded and no conflict like in these cases, then use s79
As to (4), the covenant must be duly protected:
Where title to the burdened land is unregistered
Where title to the burdened land is registered
 ENFORCEMENT BETWEEN SUCCESSORS TO BOTH THE ORIGINAL

COVENANTOR AND THE ORIGINAL COVENANTEE
‘Have the benefit and burden run with the lands of the original covenantee and the
original covenantor.’
Successor C Successor D
As to the passing of the burden to D, this is governed by the same rules as discussed
above in 5 for the passing of the burden in equity.
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As to the passing of the benefit to C, it is generally accepted (Miles v. Easter [1933]) that
it is not possible to mix the common law rules for passing the benefit when the claim also
involves the equitable rules for passing of the burden. (There is some disagreement with
this – see Gray & Gray and Rogers v. Hosegood [1900]).
For the benefit to run with the land in equity:
1) The covenant must touch and concern the land of the covenantee; and
2) The benefit has been transferred to the successor either:
a. By annexation;
b. By assignment; or
c. Through the operation of a scheme of development.
(a) Annexation of the benefit to the land – Express, Implied and Statutory
(i) Express Annexation

- can be achieved only by drafting the document containing the restrictive covenant to
express an intention to benefit a defined piece of land, rather, than merely to benefit
the original covenantee
By making direct reference to the dominant land, this indicates that the parties intend
the benefit of the covenant should pass to successors in title
Rogers v. Hosegood [1900] – a covenant for vendors, their heirs and assigns and
others claiming under them all or any of the lands adjoining was expressly annexed.
in contrast….
Renals v. Cowlishaw (1879) – a covenant just for vendors, their heirs, executors,
administrators or assigns was not expressly annexed as there was no reference to land.
– the conveyance of the servient land said that the restrictive covenant was entered
into for the benefit of the vendors and no reference to the land, has it been annexed to
the land?
you have to make sure its for the benefit of the land
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Re Ballards Conveyance [1937]

- house in question was a small cottage attached to a large estate
- in the agreement between the parties, the owner of the little cottage agreed with the
estate owner not to build anything on the land that’s associated with the cottage
- dispute before the court and the court had to look at what the burden is (not to build
on the land) for the benefit (of this massive estate) and court said that’s inconceivable
how can the estate benefit from this covenant its impossible the land near to where
the cottage is would benefit but not one that’s on the other side so court said no
annexation and suggesting if you want to annex a land and if theres a difference in the
size of the plot, it has to benefit each and every part of the land
distinguish from Marquess of Zetland v Driver – Marquess was successful in

preventing a fish and chip shop from being opened. the covenant was expressed to
run with the whole state, i.e to be for the benefit of the whole or any part or parts of
the unsold settled property
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(ii) Implied Annexation
Marten v. Flight Refuelling Ltd [1962]
Transmission of Covenants in Equity - Benefit - Annexation - expressCovenent held

capable of benefiting a 7.5k acre plot.Court may imply annexation from the
conveyance. (rare)
(iii) Statutory Annexation (LPA 1925, s. 78)
Federated Homes Ltd v. Mill Lodge Properties Ltd [1980]

- MacKenzie Hill sold red and green land
- both red and green land were later sold to Federate Homes through various parties
- the conveyance of red land did not contain the benefit of the covenant in the D’s
conveyance
- the conveyance of green land did contain the Ds covenant
- the D obtained new planning permission to build 300 homes on blue land and
obtained additional permission to build 32 houses
- the Cs also applied for planning permission to build on red and green land, but
found that the Ds additional permission to build 32 houses adversely affected the Cs
development of blue land. The Cs applied for an injunction to prevent the D from
building more than 300 houses.
- the CoA had to decide whether the clause effected an annexation so that on the sale
of red and green land the right to enforce the covenant passed automatically to
Federate Homes.
- the court held that the clause quoted achieved a valid annexation
Crest Nicholson Residential (South) Ltd v. McAllister [2004]

 made further inroads into Federated case automatic annexation
 two brothers bought land at Claygate in Surrey
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 over a period from 1928 to 1936, they sold the land off in plots

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 each conveyance was subject to a restrictive covenant in effect ‘not more than one
house per plot’
 the conveyances did not identify any dominant land. there was certainly not a
building scheme
 McAllister, who had acquired part of the land conveyed in 1936, claimed to be able to
enforce the restrictive covenants in the earlier conveyances. He relied on the broad
reading of the Homes decision set out at the earlier heading of something something
 He argued ‘under Federated Homes there is annexation to each and every part of all
land which the covenantee retains in the vicinity. That land does not have to be
identified in the covenant.
 CoA rejected this wide reading of Federated Homes which had been adopted by most
commentators since 1980
 rather, it held that for there to a valid statutory annexation under s78, the dominant
land must be either clearly spelt out in the conveyance itself, or the dominant land
must be mentioned in the conveyance itself and ‘easily ascertainable’ from looking at
the surrounding circumstances
 the one point not covered by the Crest Nicholson case is whether the annexation is
presumed to be each and every part of the dominant land
Roake v. Chadha [1984] – excluding the operation of s. 78.

- the judge upheld the effectiveness of a clause which made it clear that the benefit of
a set of restrictive covenants was not to pass by annexation, but only by express
assignment.
- the judge rejected an argument that the benefit of the covenants had nevertheless
been annexed by virtue of s78(1) LPA 1925. he held that careful drafting had
excluded the effect of s78(1) LPA 1925.
(b) Assignment
what happens to the benefit?  transfers the benefit to a person (assignee)

timing: when does it occur?  operates when the and is transferred (this could happen
some years after the covenant was created)
what is the effect of this mode of transmission of the benefit?  each time there is a
transfer of land, a new assignment of the benefit must be created
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Miles v Easter rules
(c) Scheme of Development
a building scheme arises where an area of land according to a plan is ‘sold or leased in
lots’ (commonly known as plots). when the lot is sold or leased the purchasers are subject
to the benefit and burden of covenants which are mutually enforceable between the
current owners. If a building scheme has been validly created then all properties within
the scheme are both servient and dominant land.
1) intention that a well defined area of land be sold-off in parts;

2) a mutual intention that the various purchasers will benefit and be bound by
common restrictive covenants.
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Lecture Notes Lecture Semester 2 Easements and Covenants Ho 2016

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Lecture Notes Lecture Semester 2 Easements and Covenants Ho 2016

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Lecture notes, lecture semester 2 - Easements and

Land Law (University of Leicester)

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Leicester Law School

© Barbara Bogusz 2016

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Ellenborough Park, Weston-Super-Mare and the four essential characteristics of an

private pleasure ground is a recognised easement in law.

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1. There must be a dominant and servient tenement.

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B. THE ESSENTIAL CHARACTERISTICS OF AN EASEMENT

(i) There must be a dominant and a servient tenement

The dominant tenement

The servient tenement

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(ii) The right must accommodate the dominant tenement

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An easement is a property right and is capable of existing as a legal interest. For an

This breaks down into parts:

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A right to light? – an easement of light, under which a dominant building is entitled to

Hunter v. Canary Wharf [1997]

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Rance v. Elvin (1985)

Crow v. Wood [1971]

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Re Ellenborough Park [1956]

Phipps v. Pears [1965] – the right to have protection from weathering

Hunter v. Canary Wharf [1997] – the right to television reception

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However, the SC has recently recognised the right to emit a noise as an

“… an easement represents a diminution of a servient owner’s rights, but does not

But how do we set the boundary between diminution and deprivation?

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- remains good law

Wright v. Macadam [1949]

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Moncrieff v. Jamieson [2007] UKHL 42; [2007] 1 W.L.R. 2620

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Virdi v. Chana [2008] EWHC 2901 (Ch)

(2008) Conveyancer & Property Lawyer 244

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Part Two – Creation of an Easement

A. METHODS FOR CREATION (OVERVIEW)

(1) Statute. – only look at very narrowly

(2) Prescription. – focuses on long usage

An easement or a profit is a legal interest in land provided that:

Grant of an Easement (Unconnected to Sale of Part)

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Grant of an Easement on Sale of Part

Land sold to the Land retained by the

[Emmett v. Sisson [2014] EWCA Civ 64]

Reservation of an Easement on Sale of Part

Land retained by the Land sold to the