Easements and Covenants

  • Created by: Nikki
  • Created on: 17-04-16 14:45

Elements of easements (1)

The rule in Ellenborough Park:

(1) there must be a dominant and servient tenement
(2) an easement must 'accommodate' the dominant tenement
(3) dominant and servient owners must be different persons
(4) a right over land cannot amount to an easment, unless it is capable of forming the subject-matter of a grant

Elements (1) and (3) --> Two pieces of land, two owners

  • requires that one piece of land (servient) be used in a certain way
  • right belongs to the dominant piece of land
  • must relate to use of land
  • must belong to you rland --> 
    • belongs to owner in capacity as owner of land --> must benefit them in this capacity
    • attached to the land --> trasnferred with the land
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Elements of easements (2)

Element (2) - 'accommodating' the dominant land

  • benefit you in your capacity as that land's owner 
  • paraphrased/glossed --> rights which could otherwise exist as easements are prevent from doing so and must only be licenses:
    • (a) land should be close to mine
    • (b) 'accommodate'
    • (c) cannot be an easement unless ti is 'connected with the normal enjoyment' of your land
    • (d) right cannot be as easement if the benefit it gives you is in the nature of 'mere recreation and amusement' 
  • glosses tend to privilege rights that are traditional, ordinary, agricultural and about business rather than creation
  • played down in Re Ellenborough Park 
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Elements of easements (3)

Element 4: a right 'capable of forming the subject matter of a grant'

  • short hand for 3 further rules - bars from existence as an easement rights that otherwise satisfy the law's requirements but which:
    • (i) require me actively to do something, except to maintain a fence between our two pieces of land
    • (ii) benefit you without activity on your part
    • (iii) give you excessively extensive rights over myland, rather than allowing you to use it in some more restricted way --> current view that right can exist as a valid easement so long as it does not leave me 'without any reasonable use' or with only an'illusory' use of my land
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Positive and negative easements

Positive easement = enjoyment involves you encroacing on my land --> affording you a defecne to trespass or nuisance against me

Negative easemnt --> does not involve you encroaching my land --> imposes oblgiation on me not to do something

Only 4 types of negative easements (will not be extended: Phipps v Pears) 

- not to impede a flow of water through an artificial channel from my land to yours
- a flow of air
- a flow of light across my land to a particular aperture on you rland
- not to remove the support that my land gives your buildings

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Easements as rights in rem

Even if a right satisfies the aobve rules it won't be an easement unless we want it to be --> could make a licence instead

Why rights in rem?

  • damages would not be satisfactory as compensation --> warrant portection in specie --> so must affect disponees --> allows exploitation of land to have best of both worlds between division into sealed packets and more communal approach
  • establihment need not be restricted to situations in which unsealing packets does more good than harm 

NB - utility supply

- companies supplying utilities need to runt heir equipment through other people's land
- cannot exist as easement or leases 
- established as in rem in their own right under statturoy provision aimed specifically at their context 

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Creation of easements (1)

Express and implied conferral

  • express conferral = straightforward
  • implied conferral
    • necessity; common intention; pre-existing usage of two pieces of land
  • where facts trigger these rules, law does not ask whether parties probably mean tto create the easement --> impute the easement --> finds easement automatically unless parties have decided and stipulated against creating it
  • impliedly granting and reserving easements have slightly difference approaches

Rule 1 - necessity
- where piece of land trasnferred to you is landlocked
- unless excluded by contrary intention
- won't be found on this basis if there is a footpath or even access to you land by water
- used only to give bare minimum of access to your land

Rule 2 - common intention
- trasnfer with common itnention that you should use the trasnferred land for a particular purpose and that purpose is feasible only if you have an easement over the land I retain
- not required to produce direct evdience of common intention of easement itself --> inferred from common intended purpose
- only where they are essential to the sole use to which we contemplated you would put the land

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Creation of easements (2)

Rule 3 - implication on basis of prior usage
- look back at way land used before the trasnfer --> if used in a way suggestive of an easement, treat this as basis on which to say the transfer impliedly gives an easement allowing use to continue after it
- new easement will have shape of prior usage - prior usage must be easement shaped
- distinguish unity of occupation and diversity of occupation
- Wheeldon v Burrows; s62 LPA 1925

(a) Wheeldon v Burrows

  • Where I own two pieces of land and transfer one of them to you, an eaement over th epiece I retain is implied into transfer of other piece to you where:
    • before the tranfer there was a quasi-easement over the retained piece in favour of the trasnferred piece, in the shape of the easement that you now argue should be implied
      • easement shaped use of the two pieces of land during time both owned by me
    • at the time of the trasnfer, this quasi-easement was 'continuous and apparent'
      • 'always discoverable' --> often, though no necessarily, from permanent clues on land rather than from quasi-easmeent's actual exercise
    • it is 'necessary for the reasonable enjoyment' of the transferred piece that you now have an easement in the shape of the earlier quasi-easment
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Creation of easements (3)

(b) s62 LPA 1925

  • applies in same case as W v B
  • but less demanding - lacks any requirement that the use of the land be:
    • continuous and apparent
    • necessary for transferred land's reasoanble enjoyment 
  • 'advantage enjoyed with' land transferred --> has to be recognisable as belonging to the transferred land as opposed to something that was previously done on ooting that same person owned both pieces of land and could do as he liked on them
  • critcisims -->
    • lack of second two requirements in W v B --> problematic
      • lack visibility and utility 
      • undercuts W v B 
    • 'advantage' in every particular 
      • if adv is easment shaped ine very particular, in it was intended to be an easement, and it ismply deed requirement that is lacking, logic of s62 works
      • but courts don't restrict s62 in this way --> unprincipled breadth
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Creation of easements (4)

Implied reservation

  • rule under s62 or W v B cannot operate to reserve easment 
  • law will reserve where it is necessary and where there is a common intention
  • restictive approach justified on utilitarian argument + consent --> consent possible in granting but not possible to read from transferee accepting a deal --> your failure to rule out an easement does not so clearly bespeak a degree of consent to it on your part


  • for 20 years you have acted as though you already had the easement
  • same critciisms as made of s62 --> doesn't require necessity
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Creation of easements (5)


  • legal easement --> grant or reservation has to be effected using deed and must be registered
  • express equitable easement --> writing must be used; no requirement of registration 
  • implied grant or reservation is regarded as a deemed express grant or reservation --> same formality requirements
    • doesn't failt o meet them because implication is into transfer, and easement seen as being made with formality that was used for the transfer --> transfer made by deed so easement seen as having been made by deed too
    • unclear wehther registration of transfer would count as registration of easement implied into it --> but issue avoided thanks to rule lifting requirement of registration from creation of implied easements
  • easement by prescription
    • generated by imagining that the easement was originally conferred by express grant, which can no longer be discovered
    • said grant would have had to have been made accordint o correct formalities
    • but little reason to imagine that these formalities could not have been fulfilled so unliley to face as argument on this in pracice
  • proprietary estoppel --> formality rules inapplicable 
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Easements' effectiveness against disponees

Pre 2002 -->
- may appear on land register --> bind disponee for this reason
- if not will bind anyway as overriding interest

Post 2002 -->

  • express grant or reervation of legal easment 
    • registrable disposition
    • if not registered --> becomes equitable easement
  • legal easement arising in any other way
    • doesn't have to be registered simply to exist
    • can be registered to bind disponee
    • can operate as overriding interest, but only if, at the time of the disposition
      • disponee knows of it
      • it would have been obvious on a reasonably careful inspect
      • it has ben exercised in past year
  • equitable easement 
    • can be registered to bind disponee
    • cannot operate as overriding interest 
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Restrictive covenants (1)

Equitable right/oblgiation; in rem

Requirements --> an obligation which I undertake in your favour and which:
(1) 'touches and concerns' my servient land 
(2) 'touches and concerns' your dominant land
(3) operates in a negative way --> limits the things one may do on their land, rather than requiring activity from the other

Requirement (1)
- duties created by the oblgiation must affect me as regards the use I make of my land 
- it should be intended to be in rem --> binds not only me but also disponees

Requirement (2)
- undertaking must benefit you in your capacity as owner of your land, rather than in your personal capacity
- must create it with the itnention that it should do so 

Role of requirements (1) and (2) --> textbook supports (1) as universally necessary but questions whether (2) is

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Restrictive covenants (2)

Requirement (3)
- depends on its effect, not on its wording
- negative covenant cannot require me to do anything, inc spend money --> must simply require that I refrain from doing something
- sometimes a covenant has both positive and negative parts --> law treats negative aspect as in rem and positive aspects as in personam only

Role of requirement (3) --> 

  • established in Haywood v Brunswick 
  • possible arguments:
    • against burdening disponees too heavily
    • against chilling land market in general or land's subsequent enjoyment and exploitation
    • based on liberalism and republicanism and a reluctance to coutnenace too great an erosion of liberty --> positive covenants would be a greater erosion of liberty (but see class dimension of this argument)
  • alleged drawbacks to covenants seem illusory
  • positive covenants should ahve been admitted to be an in rem class of rights
  • law has introduced alternative way s of giving in rem effect to positive oblgiations calculated to secure communal facilities
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Creation of restrictive covenants (1)

  • usually arise by intentional conferral
  • often in transacitons (reflected in price) or may be ad hoc (in exchange for a price)
  • normally express but could be implied in principle (but in practice this would be very rare)
  • cannot arise on basis of prescription
  • can arise by proprietary estoppel

Conferral on TP

  • can be conferred in a transaction between two people on a TP 
    • not merely contractual --> in rem
    • if meant to benefit in capacity as owner of my retained it is right in rem and not mere contract
    • intentionto benefit TP can be shown by terms of documentation or from surrounding circ especially the existence of a building scheme


  • intentional conferral --> must be in writing
  • should be given in deed because normally term of transfer --> but not the rule for covenants themselves
  • need not be made by deed nor be registered (equitable rights)
  • good candidate for e-conveyancing
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Restrictive covenants' effectiveness against dispo

Will bind if registered 

No provision to bind an overriding interest 

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Passing of the benefit (1)

Rights can be enforced not just by the owner but by successive owners

Standard account -->

  • if A enters into a covenant in favour of B, then B transfers the land and its benefits to C, C will acquire the covenant rights if one of 3 conditions is satisfied
    • (1) original transaction between A&B annexed the covenant to B's dominant land
    • (2) while it was not originally annexed to B's land, B assigned the benefit of the covenant to C when you transferred the land to her
    • (3) A entered into the covenant in B's favour in the context of a building scheme

Condition (1) - annexation

  • express --> where original transaction states in express owrds or by necessary implicationt hat the covenant is for the benefit not mere of you but of you in your cpacity as owner of the land in question, or of you and your successors in that land
  • statutroy --> recognised in Federated Homes Ltd v Mill Lodge Properties --> s78 LPA 1925
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Passing of the benefit (2)

Condition (2) - assignment

  • right are not annexed but are passed with dominant land by B to C 
  • dominant land must be identififable but not necessarily from terms of covenant document - common sense inferences will suffice
  • must be assigned simultaneously with transfer of land or won't apply
  • given wide scope of statutory annexation it should hardly ever be relevant

Condition 3 - building scheme


  • complex set of rules --> result of failure properly to grasp topic's key ideas
  • should move naturally with land as should always fix to land and remain fixed
  • view leaves assignment as rather redundant 
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Comparing restrictive covenants with easements

  • basic similarity with easements in sense taht both are oblgiations in rem with 'appurtenant rights' --> can exist against me only ift he rights to them benefit you not yin your personal capacity but as owner of your land
  • should they be merged?
  • 2 principle differences
  • (1) oblgiation's content
    • content matters --> have to jsutify in rem status
      • both still justify said status but novel applications reuqire justification in ligh of their own content
        • easements correct to be wary; covenants wrong to give the appearance of 'insouciance'
      • if two kinds were to be merged it should nto be on basis which allows people to create appurtenant rights of whatever content they choose
  • (2) way sin which they can be created
    • issue whether it is right for law to geneerate such oblgiations on ground of utility (backed up by a weak element of consent) as it has traditionally done with easements but not with covenants
    • law of covenants seems right not to contemplate non-intentional conferral, in that rights of the content to which it caters surely cannot be necessary
    • if 2 types of oblgiation were to be merged, it should be on basis that non-intentional conferral remains possible, but only where the right is in some sense necessary
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