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Easements and Covenants
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Comprehensive textbook, lecture and academic notes on Topics in English Land Law. Includes key cases, analysis of the law, academic criticism and my own comments. Got me a 1st
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6 – EASEMENTS and COVENANTS65% of registered freeholds are subject to an easement; 79% are subject to restrictive covenants.
Easements
Intro
The land with burden is the servient tenement; the land with the benefit is the dominant tenement.
Easements are capable of being legal interests (LPA 1925, s 1(2)(a)).
Easements can be positive (gives the owner of land a right to do something on neighbour’s land) or
negative (gives the owner a right to stop his neighbour from doing something on his neighbour’s land)
(Denning, Phipps v Pears). Negative easements are a greater burden.
Easements are private rights; they are distinct from profits (usually access to a resource), public rights of
way, leases (which require exclusive possession for finite time), and licences (not proprietary).
Definition
Danckwerts in Re Ellenborough Park (1956) set out the “essential qualities of an easement”:
1. “there must be a dominant and servient tenement;
2. an easement must accommodate the dominant tenement, that is, be connected with its
enjoyment and for its benefit;
3. the dominant and servient owners must be different persons; and
4. the right claimed must be capable of forming the subject-matter of a grant”
Dominant and Servient Tenement
The right must benefit D estate in land and burden S estate in land
- Rangeley v Midland Railway Co (1868) (no easements in gross (without DT))
Gibson (London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (1994) suggests the reason is “the
policy against encumbering land with burdens of uncertain extent”. Sturley (1980) argues against the
rule – other rights in land can exist for benefit of a person without DT (eg profits), it might be useful to
recognise easements in gross benefitting people rather than land (eg national companies).
LC (2011) recommended the law stay as it is – recognising in gross could “overburden servient
tenements by allowing the benefit to be shared by an unlimited range of dominant owners … the
requirement … acts as an important filter on the creation of property rights.” Concern that removing
would harm alienability and the property market. In LC No 327 (2011), felt it would lead to proliferation
of adverse interests unlimited by needs of DT.
The DT does not need to be identifiable by the document creating the easement (can be context)
(Thorpe v Brumfitt (1873)).
Accommodate the DT
To ‘accommodate’ the dominant tenement, the plots must be relatively close together (but do not need
to be adjacent).
- Bailey v Stephens (1862) (must have natural connection with estate, being for its benefit)
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