Easements and covenants

• Easement


  A right benefiting one piece of land (the dominant tenement) that allows the owner to use or restrict the use of another piece of land (the servient tenement)
• Easement


  • Re Ellenborough Park [1956] Ch 131: Establishes the essential characteristics of an easement
• Dominant tenement


  The land that benefits from the easement
• Servient tenement


  The land that is subject to the easement
• Positive easement


  An easement that allows the owner of the dominant tenement to do something on the servient tenement, such as a right of way
• Negative easement


  An easement that allows the owner of the dominant tenement to restrict the use of the servient tenement, such as a right to light
• Prescription


  The acquisition of an easement through long use, either at common law, under the Prescription Act 1832, or under the doctrine of lost modern grant
• Prescription


  • Tehidy Minerals Ltd v Norman [1971] 2 QB 528: Discusses the requirements for prescription at common law
• Implied grant


  The creation of an easement by implication, either through necessity or intended use, when land is divided and sold off
• Implied grant


  • Nickerson v Barraclough [1981] Ch 426: Discusses the principles governing implied grant by necessity
• Necessity


  An easement that is necessary for the reasonable use and enjoyment of the dominant tenement, such as a right of way to access land that is landlocked
• Necessity


  • Pwllbach Colliery Co Ltd v Woodman [1915] AC 634: Illustrates the concept of necessity in the context of implied easements
• Intended use


  An easement that is necessary for the intended use of the dominant tenement, as contemplated by the parties at the time of the grant
• Intended use


  • Wong v Beaumont Property Trust Ltd [1965] 1 QB 173: Discusses the principles governing implied grant by intended use
• Extinguishment


  The termination of an easement, either by express release, merger, abandonment, or statute
• Extinguishment


  • Castle Cement Ltd v Chandler [1986] 2 EGLR 132: Discusses the principles governing abandonment of easements
• Excessive use


  The use of an easement in a way that exceeds what is reasonably necessary for the enjoyment of the dominant tenement, which may lead to the restriction or extinguishment of the easement
• Excessive use


  • McAdams Homes Ltd v Robinson [2004] EWCA Civ 214: Illustrates the concept of excessive use in the context of a right of way
• Covenant


  A promise contained in a deed that requires the covenantor to do (positive covenant) or refrain from doing (restrictive covenant) something in relation to land
• Positive covenant


  A covenant that requires the covenantor to do something, such as maintain a boundary fence or contribute to the cost of repairs
• Positive covenant


  • Rhone v Stephens [1994] 2 AC 310: Establishes that positive covenants do not run with the land at common law
• Restrictive covenant


  A covenant that restricts the use of land, such as prohibiting the erection of buildings or the carrying out of certain trades or activities
• Restrictive covenant


  • Tulk v Moxhay (1848) 2 Ph 774: Establishes the principle that restrictive covenants can run with the land in equity
• Burden


  The obligation imposed by a covenant on the covenantor or their successors in title
• Benefit


  The right to enforce a covenant, which may be held by the covenantee or their successors in title
• Running with the land

  The principle that the burden and benefit of covenants may pass to successors in title of the original parties, subject to certain requirements
• Running with the land

  • P & A Swift Investments v Combined English Stores Group Plc [1989] AC 632: Discusses the requirements for the burden of a covenant to run with the land in equity
• Annexation


  The requirement that the benefit of a covenant must be annexed to land owned by the covenantee for it to run with the land
• Annexation


  • Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594: Illustrates the principle of annexation in the context of restrictive covenants
• Building scheme


  A development where land is divided into plots and sold subject to a common set of restrictive covenants, which are enforceable between the plot owners
• Building scheme


  • Elliston v Reacher [1908] 2 Ch 374: Establishes the requirements for a building scheme
• Discharge or modification


  The process by which the Lands Tribunal may discharge or modify restrictive covenants under the Law of Property Act 1925, section 84
• Discharge or modification


  • Re Bass Ltd's Application (1973) 26 P & CR 156: Illustrates the principles governing the discharge or modification of restrictive covenants under section 84