Easements and Covenants in Land Law

This article discusses easements and covenants in land law, including their types, creation, termination, and impact on land use. It explains the difference between easements and covenants, their formation requirements, and their effects on land values. The article also explores the role of easements and covenants in private planning law and the need for clear regulations. Find study material, solved assignments, and essays on easements and covenants at Desklib.

Land Law

Easements and covenants are a form of private planning law and should be made by
governments rather than private property owners.
Easement and Covenant are the main mechanisms for transferring right and responsibility
over land. According to English law, an easement refers to the right that a person acquires to use
a parcel of land that he has no interests attached it. This results to a burdening effect to the land
owner because he can no longer use the land in a similar manner like he used to. The common
types of easements include the right of way and right of light. An easement can be granted by the
land owner to another party or even, the land owner can reserve it for their own use. In some
instances, a land owner could allow his neighbour to cross over his land so as to have access to
his land or the land owner can retain his drainage system for his own use at the expense of his
neighbour.. However, an easement should not deny the land owners the right to use their land.
The land that gets affected by the easement is referred to as the ‘servient’ while the land that
benefits from the easement becomes the ‘dormant’ land. There are various modes in which an
easement is granted. They include express grant, implied grant or prescription.
1. Express easement. This is also referred to as reservation easement. It is created in
situations where the reservation is in form of a deed. A deed refers to a legal document
that confirms interest in land. The interest could be absolute/freehold or a leasehold.
However, the tenure type or interest has direct effect on easements. It happens when
someone sells part of his land thus makes it necessary to make a written easement that
allows the original land owner to and the buyer to use their land without conflicts. There
must be a written instrument that safeguards the parties’ relationship in the present and in
the future. In a case where the land is not registered by the state, express easement results
to an automatically binding agreement that does not require registration. However, in a
situation where both the servient and the dominant parcels of land are registered, the law
requires that registration be effected either under the servient title or both.
2. Implied grant. This is a special type of easement that requirements engagement of the
authorities. It arises when a landowner sells part of his land and they don’t agree with the
buyer over an easement. For instance where the new buyer happens to be landlocked
denying him access to his property and the only way he can is by crossing through the
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parcel of land belonging to the original land owner. Failure to that, the new buyer is
denied enjoyment of his property and the authority has to intervene.
3. Prescription grant. This arises where there is evidence that the land has been in
continuous use by one party for a number of unspecified years. The easement is granted
under the prescription Act of 1832 and the new entrant should be assured that the land
has uninterrupted use of at least 20 years.
Just like the transfer of other land interests, the creation of an easement has its own formalities
that include a written contract having a signature from both parties. They are basically created
through a conveyance deed under which the easement is registered.
Easements are subject to terminations. There are various cases that may lead to such
terminations. This may arise when the easement matures and the expiry date is arrived at
therefore implying that the servient user ceases to have any interests in the easement whatsoever,
where the servient and the dominant portions of land belong to the same person, when the
dominant owner decides to terminate it through a deed or when there is an implied release and
the dominant owner is confirmed to have used the land for a period of less than twenty years. In
English law, easement legal right to use another land is transferred for a specific time purpose.
In situation where individual is granted with an easement, then such person has the right to use
the property for a specific time period of time but ownership of the property has to remain
unchanged (Thompson, 2012). There is a general rule that grants the servient and the dorminant
users a right to use the land in the highest best use that leads to the fulfilment of the sole purpose
of the easement without undue interference with each other. The undue interferences depends
entirely on the situation of the individuals. However, as much as both parties make maximum
use of the easement, it is upon the dominant user to ensure that he does not burden the servient
user. If by any chance the dominant user is found guilty of burdening the servient, he or she is
subject to monetary compensations or termination of the easement contract.
Most common example of easement are grant utility companies to run cable line. According to
easements, it is essential that there must be two or more abstracted portion of land in which one
has benefit of responsibility and other has transfer the burden. It considers the grant of right of
manner for the proprietor of one part of the land over a contiguous part of the land (Bray, 2013).
Easement can arise in a variety of way like legal deed etc. On the other hand, a covenant can be
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defined as a promise formed through express agreement between two or more parties. The
Covenant can either be negative or positive (Making Land Work: Easements, Covenants and
Profits à Prendre, 2011). Negative covenant impose restriction on the usage of land on the
owner while positive covenant impose obligation to do something (for example act of repair and
maintenance). Negative covenants in most cases burden the land owners by denying them direct
use of their property.
According to English land law, the sole purpose of an easement is to give a right to an
individual over some other land for its usage without interfering with original owners of that
land. The most common example of an easement is the right of way which at times extends to as
far as being granted the right to use a neighbour’s land to park a car. In some situation it may be
not possible for one land owner to access a national highway without an easement of a right of
way. Creation of easement is usually done expressly by deed, but it may be implied where it is
essential or would be moderately expected to be held by a land owner (Fogleman, 2014). A
Covenant is different from public rights. The major reason behind the difference being that it is
inclusive of rights acquired as of custom. For example, the legal right to hold a market in specific
location. The Common Act of 2006 is used for the regulation of covenant which laid down a
system of specific registration. In accordance with this Act, parties are required to provide clear
description in regard to the obligation that is transferred on another party or parties for the
restricted usage of a particular parcel of land. Furthermore, there are no as not even a single
standard form which can be used by parties (McFarlane, Hopkins and Nield, 2015). Due to this
aspect, parties are free to insert provisions and its application in the contract.
In legal terminology, easement can also be classified as an incorporeal hereditament
according to which individual has intangible rights attached to some tangible asset. Provision of
easement also covers activities which are considered to be nuisance under tort such as smoke,
noise, water run-off etc. (Reed, 2014). For the formation of valid easement the following
provisions are required to be satisfied:
 There must be dominant and servient tenement. The dominant tenement bebefits from
the easement while the servient tenement gets burdened. This aspect is established in
the case of in London & Blenheim Estates Ltd v Ladbroke Retail Park [1994].
According to easements it is essential that there must be two or more abstracted
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portion of land one of which has the benefit of responsibility and other has the burden
of obligation.
 In accordance with the case of Hill v Tupper [1863] it must benefit the dominant
tenement as it is burden which can only be tolerated if there is reciprocal
improvement or benefit to the another party (Fogleman, 2014).
 Same person cannot occupy or own both the position of dominant and servient. This
aspect was clarified through the provisions of Parshall v Bryans.
 Formed easement must be capable for forming the subject matter of a grant and must
come in form of a grant. It considers the grant of right of manner for proprietor of one
part of land over a contiguous part of land. Easement can arise in a variety of way like
legal deed etc.
Covenants can be considered as private contracts between different parties which are
used to impose restriction of the specific usage of land (Alterman, 2011). Common examples of
covenants are Neighbourhood consistency, shopping mall usage and heritage building protection.
In accordance with the provisions of English land law, provisions described under common law
does not recognize or provide enforceability for land use on restrictive covenants. However,
these covenants can be enforced under the provisions of law of equity in accordance with the
case of Tulk v. Moxhay. In English land laws, a covenant can be defined as a promise that is
made in a deed and is agreeable by engaged parties. They have significant impacts on the subject
land as well as the neighbouring parcels. There are two types of covenants discussed earlier, the
positive covenants and the negative covenant. A negative covenant restricts the land owner from
using his land thus imposing a burden on him, on the other hand, a positive covenant is
beneficial to the land owners as he is allowed to use his land in a controlled way at the expense
of the neighbouring properties. Both positive and negative covenants can have significant
impacts on the values of land. For example, if a covenant restricts the a parcel of land to being
used as for residential purposes only, this can have a negative effect on its value since it restricts
its potential to be used in more productive ways. However, this will have a positive effect and
increase the value of land that is benefiting from the covenant, considering that the neighbouring
land cannot be used in a more productive way at the expense of other parcels.
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Formation of easement and covenant is done to burden one piece of land for the benefit
of another piece of land or government body. In situation, where it is registered with the deeds
then rights will pass automatically with the passage of property (Dixon, 2013). The rights of the
ownership of land benefited by the easement also comprises of provisions of burdened land
along with its usage (McFarlane, Hopkins and Nield, 2015). In this aspect, rights can be create d
without the attaching benefit as parties may simply agree that the rights be created for the benefit
of the person but it will not be attached to the title of the land. These obligations are considered
as licenses that forms binding permission which will not be transferred with the change in
ownership.
In accordance with the legal provisions of UK, easements and covenants are part of
private planning law. As these provisions are considered to be private rights, in one way or
another affect the use of land. In some circumstances, these rights can be created, removed or
modified through planning decisions of the public land use (Ayoade and Ahmed, 2014). In order
to enhance effectiveness of these rights there must be clarified relationship between private law
of easement and covenant with the public planning procedure. The private planning law has
borrowed majorly from the land laws. In the United Kingdom, planning law serves as a planning
control tool. It controls how developers use land in relation to the existing land laws. This helps
to ensure that they do not disregard the existing covenants on land use.
Provisions for the easement and covenant are formed through wording of documents
creating the right needs to be examined carefully prior to the determination of limits of it. In this
aspect, there are some standard form of right of way created through the Conveyancing Law of
Property Act (Nyombi, 2015). This aspect shows that provisions related to the rights and
obligations of land involves different layers of property rights and a shared usage of land due to
which there are inevitable complications. Property rights include right to own and use a property,
the right to transfer the property, the right to make any enforcements on the property and the
right to generate income from the property. Properties fall under two broad categories that
include public properties and private properties. Public properties are held by the state for the
benefit of its citizens. No private entities have the right to access or use the properties. This is in
the case of public land. Private property, on the other hand, refers to properties owned by
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individuals. They have legal instruments that confirm ownerships. The main legal document that
confirms private ownership of property (land) is the title deed.
By considering the described aspects, provisions of easement and covenant is required to
be governed by regulatory norms instead of the norms determined by the private property
owners. The main reason behind these norms is because, these provisions must be created
through simple and streamlined processes. In addition to this, restrictions and the scope of rights
must be clear (Making Land Work: Easements, Covenants and Profits à Prendre, 2011). By
considering the present legislation, these rights and restrictions are cited by private property
owner due to which there is no clarity in the standard provisions. In addition to this, there is high
possibility of manipulation by which appropriate benefit is not provided to the individuals in the
land law.
One of the major objective of land law is to bring purchasing party in a position where
they can easily discover the scope and existence of easement and covenant that burden the land.
This will help them to come up with solutions in regard to the relationships created between the
concerned parties as a way of avoiding future conflicts under the easements. However, present
legislature regarding this aspect is not supportive and viable. For this aspect case of Regis
Property Co Ltd v Redman [1956] can be considered. This can be scrutinized in analysis that will
confirm a person should not be deprived of their property rights without their consent. However,
exception can be applied in this provisions in situation where parties are deprived from their
rights with the entitlement of law (Stroud, 2013).
In accordance with the study of Rees (2010) major issue in provision of land law
regarding covenant and easement is that there is no discernible requirement for the three
concurrent systems in regard to the prescriptive acquisition. This can be seen as a result of the
descriptions provided by the common law in this aspect as wholly/completely obsolete (Rees,
2010). Further, private planning law makes it more illogical as government is not in a position to
interfere in such agreements. In accordance with the existing provisions, whichever method is
used by the claimant for obtaining easement is likely to be legal. This can be seen from the
perspective that in any implied creation there is lack of any reference to the interest in documents
of the title deed (Making Land Work: Easements, Covenants and Profits à Prendre, 2011). This
aspect makes it difficult for the purchasing party to discover the existence of the rights over the
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acquired land. For this aspect in the case of Tehidy Minerals Ltd v Norman [1971] 1 can be
referred. Further, this factor may result in imposing obligation for easement despite of the fact
that it is not used for several years. Prescriptive acquisition of easement also create other
practical difficulties as there is no clarity in provisions.
Study of Cooke (2012) shows that formation of easement and covenant creates
contradiction between interest of individual and public. It is because; description of use of law in
accordance with the private planning may be prejudice to the interest of public (Cooke, 2012). In
addition to this, current law on easement and covenant is irrational, untidy and difficult for
implementation by the parties. Due to this aspect, current requirement of easement must be
attached to the dominant estate in the land services in order to retain its important purpose. It is
because; easement in gross must be recognized because it contains problem in identification of
individual entitled for the benefit and ways in which impermissible levels of intensification of
use can be avoided (MacKenzie and Phillips, 2014). In accordance with the viewpoint of
McFarlane, Hopkins and Nield (2015), this issue can be resolved in situation where there be
legitimate commercial and public objective that are prejudiced by the requirements of easement.
This approach will develop dominant estate for the effectiveness of land. This approach will be
beneficial in situation where infrastructure project depend upon effective easement in which land
is owned by different people (McFarlane, Hopkins and Nield, 2015). It is because, government
will provide common norms for the parties which will be applicable for the all individuals and
further uncertainty and ambiguity can be prevented. With this approach, individuals will be able
to attain their rights regarding the use of land in an appropriable manner and contradictory acts to
the interest of public can be prevented.
Case summary of London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd 2 in
present private planning law only considers benefits for the existing dominant tenement not for
defined and predictable extensions of it. It is cited case, judicial party had established that
authorities granted for the benefit of land to be acquired in the future did not operate for
formation of creation of legal easement that was binding on successors in title to the granter of
the rights. According to the Dixon (2014) described legal difficulties also encountered in binding
1 2 QB 528, 543, by Buckley LJ.
2 [3] EGCS 100
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successors for title in situation where problems posed in ensuring that positive covenants are
enforceable against a successor in title to the original covenanter (Dixon, 2014).
In accordance with the cited provisions conclusion can be drawn that there should be
modifications in the present provisions of land law. It is because; current law regarding easement
and covenants have certain loopholes and defects due to which parties are not able to attain their
basic benefits and in various situations provisions developed through private owners are property
are in contradiction with the interest of public. However, if all the rights and obligations will be
determined by government then it would not be justifiable to the interest of contracting parties. It
is because; fundamental purpose of the formation of covenant and easement can be prevented.
Due to this aspect, formations of provisions of covenant and easement should be made by the
mutual consent of the private owners and the government.
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REFERENCES
Books and Journals
Alterman, R., 2011. Guest editorial: comparative research at the frontier of planning law: The
case of compensation rights for land use regulations. International Journal of Law in the
Built Environment. 3(2). pp.100 – 112.
Ayoade, O. and Ahmed, V., 2014. An assessment of land use sources of barriers and the
community-based housing model in the UK. International Journal of Housing Markets
and Analysis. 7(4). pp.539 – 558.
Bray, J., 2013. Land law. Routledge.
Cooke, E., 2012. Land law. OUP Oxford.
Dixon, M., 2013. Title by registration or conquest: Interpreting the Land Registration Act 2002
in England and Wales. International Journal of Law in the Built Environment. 5(3).
pp.194 – 206.
Dixon, M., 2014. Modern Land Law. Routledge.
Fogleman, V., 2014. The contaminated land regime: time for a regime that is fit for purpose.
International Journal of Law in the Built Environment. 6(1/2). pp.43 – 68.
Hubbard, P., 2015. Law, sex and the city: regulating sexual entertainment venues in England and
Wales. International Journal of Law in the Built Environment. 7(1). pp.5 – 20.
MacKenzie, J. and Phillips, M., 2014. Textbook on Land Law. Oxford University Press.
McFarlane, B., Hopkins, N. and Nield S., 2015. Land Law: Text, Cases, and Materials. Oxford
University Press.
Nyombi, C., 2015. The development of corporate rescue laws in Uganda and in UK.
International Journal of Law and Management. 57(2). pp. -14-52
Reed, E., 2014. Optimize Land Law. Routledge.
Stroud, A., 2013. Making Sense of Land Law. Palgrave Macmillan.
Thompson, M., 2012. Modern Land Law. OUP Oxford.
Online
Making Land Work: Easements, Covenants and Profits à Prendre. 2011. [Pdf]. Available
through:<https://www.gov.uk/government/uploads/system/uploads/attachment_data/
file/229064/1067.pdf>. [Accessed on 28th March 2016].
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Rees, N., 2010. EASEMENTS AND COVENANTS. [Pdf]. Available
through:<http://www.lawreform.vic.gov.au/sites/default/files/EandC_Final_Report.pdf>
[Accessed on 28th March 2016].
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