Legal Easements Explained

Question 2

Advice to Graham and Jason

Essentially, the English law recognizes the right that a third party has over a land owned by another party, be it for whatever purpose. Notably, this right is often inferior in nature to the land owner and could exist and can exist, either in registered or unregistered land as the only difference lies in the protection afforded. Based on legal underpinnings, an easement is a right that is annexed to a third party to use another land that is of different ownership, for a given reason and in a particular manner or preventing the titleholder from using his land property in a particular manner.

In the case of Re Ellenborough Park, the court mentioned that there exists four essential characteristics of an easement, which have long been established, bound, and thus enshrined in the modern land law system. In establishing the legal right of way over Richard’s land for Graham and Jason, these four essential characteristics must be tested. The first essential element is that there must be a servient tenement and a dominant tenement, in which case, the dominant tenement is the land that would benefit from the easement (Graham and Jason’s lands). On the other hand, the servient tenement is the land, to which the benefit is exercised (Richard’s land). The second essential element is that the right has to accommodate the dominant tenement. This is to say that it has to be connected with the land use and must be of benefit to the land. Notably, it is evident that the right would be of benefit to Graham and Jason’s lands. The third essential element is that both the dominant tenement and the servient tenement must not be wither occupied and owned by the same individual. The final essential element is that the right of way over should “lie in grant.” Notably, this implies that it should be a right that can be granted by deed. Of importance to note, is the fact that a tight of way poses as a recognizable easement. The individual capable of granting the said right must as well grant it. Overall, based on the provisions of the aforementioned characteristics of an easement, it is clear that Graham and Jason have a legal right of way over the land (Richard’s) even when Richard decides to sell it to another individual.

How Graham and Jason might protect their interest

Firstly, owing to the fact that Graham and Jason have a legal right of way over, they need to protect their interest by presenting a notice to the register of Richard’s land. According to the Land Registration Act (LRA) 2002, section 32 (1), it provides that a notice is an entry notice in the register regarding a burden of an interest that affects a registered estate. In this regard, Graham and Jason should apply for this notice with the consent of Richard or they should have a unilateral notice without gaining his consent. Essentially, this notice would aid in protecting their interest by protecting their right of way, as it would provide notice to the world of their right.

Secondly, there exist various types of easements. However, the major easement that can apply to Graham and Jason’s situation is prescription. Based on prescription, there are three significant methods, which might aid Graham and Jason in protecting their interest by claiming their easement. This includes the common law principles, under the Prescription Act 1832 or by the lost common grant principle. In an instance where there is a private right of way, then that implies that it had been existing without objection or consent from the tile holder. However, having been that there was no expressed words regarding consent to this right, then ultimately, the only mean and also mode of measuring the extent to which this right existed is by the extent of the said enjoyment. This can only be shown by use of evidence. Ultimately, whichever method by which the right of claim is used, the user must be able to clearly provide evidence of being a user for a period of 20 years of even more. In this regard, in order to protect their interest, Graham and Jason must be able to provide evidence for having used Richard’s land for 20 years or more.

Additionally, the common law indicates that firstly, the user has to be of right, and secondly, the user has to be continuous. Thirdly, the right should be one that is lawfully granted. Having this in mind, it is then evident that Graham and Jason can be able to acquire an easement through prescription. In applying this law, as aforementioned, an easement for an easement to exist, there must be a dominant tenement and a servient tenement relationship, in order for the right to be acquired through prescription. Evidently, the Prescription Act 1832 aimed at removing the complications, as well as the absurdities from the other two prescription methods. However, it is also noteworthy that the provisions were badly drafted and thus created complications. Presently, the three methods do exist side-by-side as the act covers various situations that the other two methods do not cover. Overall, given the situation of Graham and Jason, it is evident that they can use the prescription method to protect their interest.

Question 3

Advice to Perry

A free covenant refers to a promise that the covenantee extracts from a covenantor, in which case, the covenantor purposes to either promises to do something (positive covenant) or promises never to do something (negative covenant) on their land. In this regard, the land, which benefits from this covenant, is then regarded as the servient tenement. Notably, the general rule, according to the common law is that the land that is owned by the covenantee is benefitted by the promise, whilst the land that is owned by the covenantor, to which the said covenant applies, is thus burdened by the promise/covenant. Notably, based on this, two major issues might arise. The first is whether the burdens of the said covenant can follow through with the property transfer and the second is whether the benefits derived from the land (owned by the covenantee) can be passed to the buyer. Significant to note, positive covenants run at law only and in this regard, any attempt to allow positive covenants to follow-through in equity just like restrictive covenants have long been denied as evidenced in the case involving Rhone v Stephens. On the other hand, the burden begotten in negative covenants purposes to bind the successors of the title. Notably, this rule is inconsistent with positive covenant and as evident, there is inconsistency, as well as confusion when considering freehold covenants wholly.

Ian, in this case, is the original covenantee, and as such, there is no need considering whether the covenant benefits run. However, when he sold the land to Kathryn, with a covenant preventing the construction of more than one dwelling on the plot, and another covenant requiring the erection of a stone wall between the two properties, then it is needful to ascertain whether the burdens of these two covenants run. Notably, there is both positive and negative covenants. On the positive covenant, Kathryn promised to erect a stone wall between the two property, whilst on the positive covenant, she was not to construct more than one dwelling on the plot. This then implies that Kathryn is obligated to comply with the said covenant, which had been made to benefit Ian’s land. This is owing to the fact that it touches and concerns Ian’s land, due to the fact that they are adjacent and thus, would affect his land. Essentially, there exists no express wording regarding the covenant and as such, it is assumable that the said covenant is intended to burden any subsequent owner as stipulated in the Law of Property Act 1925, section 79 (1).

Kathryn, having built a house on the site, decided to sell it to Laetitia, whilst Ian also went ahead and sold his property to Perry. Notably, no stone wall has been put up and Laetitia has obtained a planning permission to build a further house in her garden. This then poses a question of whether the covenant benefit still exists. The common law test needs to be applied in this regard. Firstly, as aforementioned, the Law of Property Act 1925, section 79 (1) indicates that the covenant is intended to burden any subsequent owner. This then implies that Laetitia should be obligated to take the burdens of the covenant. Secondly, it is evident that the covenant touched and concerned the land and as it benefit’s Perry’s land, then it is assumable that there was no express wording that implied that it was never intended to run. Moreover, it can as well be assumed, based on the fact that Ian held the legal estate on the date that the covenant was made. It is clear that Perry got her title from Ian, who is the original covenantee, and based on facts, it is factual that she holds the property on a freehold. Another fact, it is evident that the covenant was established post 1926, and as such, it is assumable that the benefit was to be passed with the land as stipulated in the Law of Property Act 1925, section S78(1).

Based on the above provisions, it is advisable that Perry should sue Laetitia for the performance of the said covenant and as such, she should require Laetitia to construct a stone wall and as well stop her from building another house in the garden as provided in the covenant. As such, the court will decree a specific performance on Laetitia.

Question 4

Advice to Teresa

In advising Teresa on whether she has any rights in Rural Idyll, it is needful to consider ways in which she can acquire legal interest in the property and the ways in which she is able to acquire equitable interest in the same property. According to the Law of Property Act 1925 section 1, under subsection 2, lists various interests/charges over a property that could be classified as having legal interests, thus including things such as easements, rent charges, mortgages, as well as rights of way and others of such charges. Similarly, under section 5 of the Land Registration Act 1925, courts acknowledge that a registered land should be belonging to any individual to whom the said land has been registered to be having an absolute title to that property. This implication makes it evident that Teresa has no legal interest that binds her to the property.

However, section 1 (3) of the Law of Property Act 1925 provides that all other estates, and interests as well as charges in/over land should be regarded as equitable interests. As such, Teresa could claim that the money she used in paying the bills for the couple’s groceries, broadband, as well as mobile phones and in addition to the having to increase her contribution to the household expenses when Julian lost his job should be regarded as money contributed towards the purchase of the property, thus, making her a shareholder to the property. In line with this, if Teresa is capable of convincing the court that the payments she made as aforementioned are just as equivalent to making a direct contribution to the purchasing price of the property, then the court would be able to concur that through her actions, a resulting trust was created. This can resolve her dispute against Davina.

Notably, the equitable presumption, due to resulting trust indicates that a person contributing to the purchasing price of a property must have purposed to do so with the intention of having the property acquired in proportion to the amount they have cumulatively paid towards the purchasing price. In an instance where the court finds that intention to be inferred by the actions of Teresa, then the presumption would be effected whilst recognizing Julian as the property’s title holder, thus needing him to hold the property on Teresa’s trust.

In the case of Gissing v Gissing, Lord Diplock made it clear that a constructive trust is established when there is a transaction existing between the cestui que trust and the trustee, in association with the trustee’s acquisition of a legal estate, whenever the trustee has conducted himself, and that would be regarded as inequitable, thus denying the cestui que trust his beneficial interest in the acquired property. Based on this provision it is then clear that Teresa would not have legal interests unless she is able to prove that she is entitled to an equitable interest in the said property. Trusts only arise when there is defined property and this implies that constructive trusts provide ways by which legal owners are required to hold the said property on trust for various beneficiaries, even in an instance where there had not been either an expressed or implied intention. Unlike the resulting trusts, in which case the beneficiary contributes to the purchasing price of the property, it is evident that constructive trusts do entail such payments. In the case of Teresa, it is clear that she even bough items for the couple, thus implying that constructive trust can be inferred. Courts can also perceive that the although Julian had no agreement with Teresa that she would be entitled to an equitable interest, it is clear that their conduct, and the fact that they both provided financial help in acquiring and maintaining the households, made it clear that there was an implied agreement, stating that she is entitled to equitable interest in the property.

Overall, it is significant to take note of the fact that courts are capable of inferring that there is an implied trust, which may have been created by scrutinizing the parties’ common intention. Notably, this is done through a presentation of evidence of an expression of comments that the parties may have made to each other and also in the company of others or even through an inference that has been drawn, based on their conduct. In order for Teresa to establish that in the whole issue, there was an implied agreement, then she should be obligated to show the court that there existed a common intention of sharing the property and that she purposed to act in her detriment, whilst relying on an implication that she was meant to acquire the property’s beneficial interest.

BIBLIOGRAPHY

CASE

• Gissing v Gissing
• Re Ellenborough Park
• Rhone v Stephens

Statutes

• Land Registration Act (LRA) 2002, section 32 (1)
• Land Registration Act 1925 section 5
• Law of Property Act 1925 section 1
• Law of Property Act 1925 section 1(3)
• Law of Property Act 1925, section 78 (1)
• Law of Property Act 1925, section 79 (1)
• Prescription Act 1832

Books and Journals

• Bray, S. L. (2016). The System of Equitable Remedies. UCLA L. Rev., 63, 530.
• Bridge, M., Gullifer, L., Low, K. F., & McMeel, G. (2017). The law of personal property. Sweet & Maxwell.
• Deininger, K., & Byerlee, D. (2011). Rising global interest in farmland: can it yield sustainable and equitable benefits?. The World Bank.
• Gray, K. J., & Gray, S. F. (2009). Elements of land law (Vol. 5). Oxford: Oxford University Press.
• King, S. (2015). Beginning Land Law. Routledge.
• MacKenzie, J. A., & Phillips, M. (2014). Textbook on land law. Oxford University Press, USA.
• McFarlane, B., Hopkins, N., & Nield, S. (2015). Land law: text, cases, and materials. Oxford University Press.
• Penner, J. (2016). The law of trusts. Oxford University Press.
• Williams, R., & Robson, S. (2014). Law. In Real Estate Concepts (pp. 253-277). Routledge.
• Ziff, B. H. (2000). Principles of property law (p. 439). Toronto: Carswell.