F106LAW Rights over Land

Right to receive a benefit over anothers land; created in a recognised way Express, implied, prescription (long use)

its nature must be positive (right of way) or negative (not to build)

the characteristics of an easement are set out in RE Ellenbrough Park (1956)

• Dominant(benefit) & Servient(burden) tenements
• It must benefit the land (not the person)
• Tenements must be in different ownership
• must be capable of forming the subject matter of the grant
  • Definite (Phipps v. Pears)
  • No expenditure on the servient tenement
  • No claim for total possession (Copeland v. Greenhalf)

Running of Benefit and Burden to Successive Owners

Covenants will run under either common law rules or equitable rules

Common Law  rules (where only the benefitted land has changed hands), where the burdened land or both have changed hands equitable rules must be used

Covenants can always be enforced by the original parties (privity of contract)

Positive covenants cannot run

Running of the Burden

Tulk v. Moxhay four conditions are required to be fulfilled

Burden passes in equity if:

• the covenant is negative in nature
• it touches and concerns land
• there is an intention for the covenant to run s.78LPA
• it has been entered in the charges section of the registered title

Remedy will usually be in the form of injuntion although damages may be claimed

Termination may occur expressly agreed by the covenantee

impliedly by breach and non enforcement after knowledge of breach

Change in neighbourhood Chatsworth Estate v. Fewell no value remaining in the covenant

Discharge or modification by upper tribunal (Lands Chamber) s.84 LPA application to discharge or modify a covenant

same ownership

• touches and concerns the land of the coventee
• there is an intentention for the covenant to pass
• s.78 LPA1925 (intention to pass) all post 1925 covenants automatically have the benefit of any covenant that touches and concerns land by virtue of the decision in  Federated Homes v. Mill Lodge Properties
• Benefited land identified Crest Nicholson v. McAllister sufficient evidence of the extent of land concerned
• or scheme of development intended to benefit and be enforcable by each of the parcels of land sold.

Running of the Burden

Does not allow the burden of a covenant to be attached to land

Never passes under Austerberry v. Oldham rule specifically upheld in Rhone v. Stevenson

The device used to circumvent this rule is set out in Halsall v. Brizell known as the doctrine of Benefit and burden. if someone wishes to have the benefit of the covenant he must accept the burden

if he wishes to use the road he must accept to pay for its upkeep.

Benefit can be assigned (expressly written) or annexed on the fulfillment of the four conditions

• touches and concerns the land of the coventee
• there is an intentention for the covenant to pass
• s.78 LPA1925 (intention to pass) all post 1925 covenants automatically have the benefit of any covenant that touches and concerns land by virtue of the decision in  Federated Homes v. Mill Lodge Properties
• Benefited land identified Crest Nicholson v. McAllister sufficient evidence of the extent of land concerned
• the person seeking to enforce the covenant has succeeded the legal estate

these rules are illustrated in Smith & Snipehall farm v. Douglas