Land Law

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Land Law
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  1. Berkley v Poulett [1977]
    If a chattel has been attached to the land, the test for deciding whether it is a fixture or not is:

    1) The method and degree of annexation

    • 2) The object and purpose of annexation
    • (ie does the object have intrinsic or extrinsic value)
  2. Elitestone
    A house/ building constructed to be removable may remain a chattel, but only if it can removed without destroying the structure. Otherwise, it will form part of the realty.
  3. Botham v TSB Bank
    Carpets & Curtains= chattels

    Light fittings= chattels

    White goods= chattels (unless fitted into kitchen)

    Cookers= chattels (if only connected to gas mains- connection is only necessary in order for the chattel to be used)
  4. D'Eyncourt v Gregory
    Pictures: If hung within paneled walls or part of the overall architectural structure- may be fixtures.

    Statues: If capable of being removed without causing damage and does not form part of the architectural design= chattel
  5. Leigh v Taylor
    Pictures: If pictures are merely hung to display them for appreciation of the pictures itself- chattel
  6. City of London Building Society v Flegg
    Married couple were trustees because they held the legal title of the property on trust for the wife's parents (who had contributed to the purchase price of the property.)

    The couple mortgaged the property to the City of London Building Society. In doing so, the building society overreached the parents beneficial interest by advancing the mortgage money to two trustees (ie the married couple).

    The parents trust interest was detached from the land and attached to the mortgage money. By wasting the money, the married couple were in breach of trust.
  7. William's & Glyn's Bank v Boland
    The husband was the sole registered proprietor of a property that he held on trust for himself and his wife (who had an implied trust having paid purchase money for the property).

    He mortgaged the property to William's & Glyn's Bank and subsequently defaulted on the repayments. The bank sought possession of the house but failed. They had only advanced money to one trustee (the husband) so had not overreached the wife's beneficial interest.

    The wife was in actual occupation under Sch3 Para 2 LRA 2002 and had an overriding interest, which in turn bound the bank.

    Also, Lord Wilberforce said that in order to be in actual occupation, a person must have some physical presence on the land, not just the right to occupy.
  8. Abbey National v Cann
    For Sch3 Para 2, a person must be in actual by the completion of sale.

    By sending her son to move in furniture and put up curtains, the court held the actions amounted to 'no more than taking preparatory steps lead to the assumption of actual residential occupation.'
  9. Lloyds Bank v Rosset
    Mrs Rosset was in actual occupation by visiting the property regularly while it was being renovated in order to supervise building contractors. She was occupying, so far as it was possible to occupy, a semi-derelict building.

    Therefore, if reasonable, an employee, agent or contractor may occupy on a person's behalf.
  10. Kling v Keston
    What amounts to actual occupation may well depend upon the nature of the property itself. A car parked regularly in a garage was the normal use of such property and hence could amount to actual occupation.
  11. Hypo Mortgage Services v Robinson
    A parent will not be able to establish actual occupation based upon occupation by their children, since children are deemed to shadow the occupation of their parents.
  12. Kingsnorth Finance v Tizard
    A person may be in actual occupation even if they are away on a regular and repeated basis, provided this is a temporary absence and there is presence of possessions.
  13. Chhokur v Chhokur
    Wife was still in actual occupation even though she was in hospital (having baby) when husband sold the land. There was evidence of her presence on the land (furniture and belongings).
  14. Goodman v Gallant
    Where the deed in favour of the co-owners contains an express declaration of how the co-owners should hold the equitable interest- the declaration is conclusive.
  15. Harris v Goddard
    For severance of equitable joint tenancy by notice, intention to sever must be immediate not 'at some point in the future.'
  16. Re Draper's Conveyance
    No need for signature for severance by notice.
  17. Kinch v Bullard
    For severance of Eq. JT, it does not matter who served the notice. It could be sender, agent or postman.
  18. Re 88 Berkley Road
    Severance by notice may be served if left at place of work or abode, even if recipient never got it. In this case, the notice was intercepted by someone else.
  19. Williams v Hensman
    The ability to sever an equitable joint tenancy is governed by s36 LPA 1925. The recognised modes of severance include:

    - Written notice

    - 'An act operating on one's own share' (alienation)

    - mutual conduct

    - homicide
  20. Re K
    Homicide severs the joint tenancy and the victim's equitable interest in the land passes to her estate as tenant in common. Murder takes estate in land as result of survivorship

    The legal estate is held on trust for murder and the victim's estate as equitable tenants in common.


    Alternatively, if there are more than two joint tenants, the murderer will become a tenant in common and the victim's share passes to the other joint tenants on survivorship
  21. Burgess v Rawnsley
    A couple were equitable joint tenants but A began negotiations to buy B out. Initially they reached an agreement for A to sell to B but A then backed out and subsequently died. The court held there had been effective severance prior to A's death as there was sufficient common intention that their shares should be held separately. They clearly did not intend for the right of survivorship to apply.

    Equitable tenancy in common may severed by mutual agreement or a course of dealings. It must be sufficient to make clear their intention that the equitable interest should be held as tenants in common, not equitable joint tenants.
  22. Bull v Bull
    Where A buys a house and holds the legal title, but B made a contribution to the purchase price, A will hold the legal estate on trust for A and B as tenants in common in proportion to their contribution.
  23. Curley v Parkes
    The judge thought, first, that a contribution of all or part of the purchase money would suffice, unless it could be shown to be a gift or a loan.

    He did not consider that payment of legal fees or other ancillary expenses, such as removal costs at the time of the purchase, would give rise to a share under a resulting trust.

    Financial contributions to a joint account from which mortgage payments were subsequently made also would not be sufficient.  The judge says that ‘the resulting trust of a property purchased in the name of another, in the absence of contrary intention, arises once and for all at the date on which the property is acquired’. 

    This means that later payments of mortgage instalments do not count as part of the purchase price already paid for the purposes of a resulting trust.
  24. Lloyds Bank v Rosset
    Lord Bridge outlined two situations where the court could impose a constructive trust.

    1) Express bargain constructive trust

    a) There must be an agreement, arrangement or understanding between the legal owners and the non-legal owners to share the equitable interest.

    b) The non-legal owners, relying on that agreement, arrangement or understanding, acted to their detriment or altered their position.

    If both elements are present, the non-legal owners will acquire an equitable interest in the land under a constructive trust.

    2) Implied bargain constructive trust

    The second situation is where there is no evidence of an agreement between the legal and non-legal owners to share the equitable interest. In this situation, again, two elements must be present:

    1. The court considers the conduct of the parties and can use that conduct to infer a common intention to share the equitable interest.

    To make this inference of a common intention, the court needs to establish that the non-legal owners have made direct contributions towards the purchase price.

    These contributions could either be to the initial purchase price or be the payment of mortgage instalments. Lord Bridge stated that he doubted that anything falling short of direct contributions would suffice.

    2. Again, the non-legal owners acted to their detriment or altered their position. The court may consider all the conduct of the non-legal owners here, not just that of direct contribution.
  25. Eves v Eves
    Constructive trust; Lloyds Bank v Rosset; 'agreement, arrangement or understanding'

    The legal owner stated that the house would have been put into their joint names had his partner been aged 21.

    The court found that sufficient statements about the ownership of the property had been made to establish a constructive trust
  26. Grant v Edwards
    Constructive trust; Lloyds Bank v Rosset; 'agreement, arrangement or understanding'; detriment or alteration of position

    The legal owner stated that the house had been put into his name only so as not to prejudice the other party’s divorce proceedings.

    The court found that sufficient statements about the ownership of the property had been made to establish a constructive trust.

    It does not matter that the statement is deceitful or a trick.

    Detriment/ altering position

    Nourse LJ considered that the non-legal owners would not have done what they did if the agreement with the legal owners did not exist – ‘the causal test’.

    Nourse LJ in  Grant v Edwards stressed that the act to the detriment must be strongly linked to, and dependent on, the common intention. So, a distinction has to be made between acts that arise from another motive, such as love and affection for the legal owner, and acts that arise from the agreement that the non-legal owner will acquire a share in the property.
  27. Street v Mountsford
    The hallmarks of a tenancy are, according to Lord Templeman 'the grant of exclusive possession for a term of rent'.

    'A five pronged instrument for digging is a fork, whatever you label it'. It is essential to look at the effect of the agreement rather than any labels given to it. In this case the actual intention was to grant Ms. Mountsford exclusive possession of a residential premises for a term of rent. This created a tenancy, not a license.

    Templeman also found that reservation of rights for the landlord to enter and view the premises for the purpose of repair emphasised the fact that the occupier was entitled to exclusive possession of the premises.

    However, even if there is exclusive possession, there will be no tenancy in the following circumstances:

    • - no intention to create legal relations;
    • - where occupation is required in connection with services provided or duties owed by the tenant to the landlord (eg employment);
    • - where the owner has no power to grant a tenancy.


    Also, where the landlord provides services that require him to have unrestricted access to the premises, there will not be exclusive possession. The occupier must have the right to exclude others from the premises.
  28. AG Securities v Vaughan
    Shared occupancy was a license because:

    - The agreements were independent of each other and did not confer exclusive possession on any one party (they also did not know each other).

    - The agreements were on different dates and at different rents.

    - The bedrooms were occupied on a rolling basis by incoming occupants.

    Therefore, the parties did not enjoy exclusive possession of the flat jointly under the terms of the agreement.
  29. Antoniades v Villiers
    Shared occupancy was found to be a lease:

    The agreements were held to be interdependent and read as a single agreement granting the couple joint exclusive possession. The couple had signed on identical terms on the same day. They shared a bedroom and clearly had joint exclusive possession. A clause allowing the owner, his agents or invitees to share occupation of the flat was held to be a sham. No more people could have possible occupied the small flat.

    Lord Templeman said 'the court must consider

    - the surrounding circumstances;

    - the relationship between occupants;

    - the nature and extent of the accommodation;

    - intended and actual mode of occupation of the accommodation.
  30. Ashburn Anstalt v Arnold
    s205(1)(xxvii) LPA 1925 defines 'term of years absolute' as meaning 'a term of years, with or without rent'.

    Therefore a lease may exist without rent but in the case of periodic leases, it will be essential.
  31. Protection from Eviction Act 1977
    At common law, a landlord must serve one full period's notice to terminate the tenancy. Therefore, if it is a quarterly tenancy this will be 3 months, for a weekly tenancy it will be one week.

    s5- where the premises have been let as a dwelling, notice must be given in writing at least 4 weeks before termination is due to take effect.

    s3- if landlord wishes to take possession, he must seek a court order if the occupier refuses to leave.
  32. Landlord and Tenant Act 1985
    s11 provides for a number of implied landlord covenants.

    However, under s13(1) they will only apply if the lease in question is a dwelling-house granted for a term of less than seven years.

    (nb- if the lessor reserves the right to bring the lease to an end less than 7 years from commencement of the lease, the lease shall be treated as being for less than 7 years)

    The landlord must:

    - Keep in repair the structure and exterior of the dwelling house;

    - Keep in repair and proper working order the installations for the supply of water, gas, electricity and sanitation; and

    - Keep in repair and proper working order the installations for space heating and heating water.
  33. Lace v Chantler
    Lease granted for an uncertain period of time is not certain and, therefore, not an estate in land.

    A lease for 'the duration of the war' was not valid.
  34. Kenny v Preen
    Landlord impliedly promises not to interfere with tenant's exercise and use of the right of possession during term (quiet enjoyment)
  35. Southwark LBC v Mills
    'Quiet enjoyment' in Kenny v Preen could include 'regular and excessive noise' from landlord.

    But no implied warranty as to the condition or fitness of the premises. Quiet enjoyment should not be interpreted to create liability for disturbance or inconvenience or any other damage attributable to the condition of the premises.

    Inadequate soundproofing or neighbour disturbances in existence at time tenancy was granted were not covered by implied covenant.
  36. O'Brien v Robinson
    A landlord is only liable to carry out repairs if he has been notified of the need to repair.
  37. Quick v Taff Ely Borough Council
    If there is no disrepair, a landlord will not be made liable under his implied covenant to repair (eg for condensation)
  38. Warren v Keen
    Lord Denning said tenants' only implied covenants were to do 'one of the little jobs about the place which a reasonable tenant would do' (ensuring sink does not become blocked, emptying rubbish bins etc).

    However, there may be express covenants in the tenancy agreement.
  39. Spencer's Case
    Enforceability of leasehold covenants; old leases

    If the lease is assigned from T to T-1 (and so on) T-1 must accept the burden of the original tenant's covenants, provided they 'touch and concern the land'

    The benefit of a landlord covenant that touches and concerns the land and the burden of a tenant covenant that touches and concerns the land runs with the term granted by the lease.
  40. LPA 1925 s141
    Enforceability of leasehold covenants; old leases

    Where L assigns the lease, L-1 will retain the benefit of all T's covenants that 'have reference to the subject matter' of the lease as these are annexed to the reversionary estate. 

    They will pass to L-1 and any subsequent owner of the reversion, thus allowing L-1 to sue T.

    Entitlement to the rent and the benefit of all the tenant's covenants in a lease that have reference to the subject matter of the lease are annexed to the reversionary estate.
  41. LPA 1925 s142
    Enforceability of leasehold covenants; old leases

    Where L assigns the lease, L-1 will retain the burden of any covenant that has 'reference to the subject matter' of the lease, as these are annexed to the reversionary estate.

    These obligations will be binding on L-1 and subsequent owners of the reversion.

    Obligations under any covenant given by a landlord in a lease that have reference to the subject matter of the lease are annexed to the reversionary estate.
  42. P & A Swift Investments
    Enforceability of leasehold covenants; old leases; 'touch and concerns the land'

    Lord Oliver said 'formulations and definitive tests are always dangerous' but provided a 'satisfactory working test' for whether or not a covenant touches and concerns the land:

    - Does the covenant benefit only the reversioner (ie the person taking over the lease) and cease to be of benefit to the covenantee (ie the person assigning it)?

    - Does the covenant affect the nature, quality, mode or value of the land of the reversioner?

    - Is the covenant not expressed to be personal?

    - The fact that the covenant is to pay a some of money will not prevent it from touching and concerning the land provided the three previous points are satisfied and it is connected with something to be done on or in relation to the land.
  43. Thomas v Hayward
    Enforceability of leasehold covenants; old leases; 'touch and concerns the land'

    A covenant by the lessor of a public house not to use adjoining land for the sale of liquor was held not to touch and concern the land because its value to the tenant was collateral: it related to the business he carried on, not to the land itself.
  44. Hua Chiao Commercial Bank v Chiaphua Industries
    Enforceability of leasehold covenants; old leases; 'touch and concerns the land'

    The Privy Council rejected any general rule that every covenant which related, however obliquely, to some other obligation which touches and concerns the land itself necessarily touches and concerns the land.

    In this case, a covenant to repay a security deposit did not touch and concern the land.
  45. Moule v Garrett
    Enforceability of leasehold covenants; old leases; who is liable and who can sue?

    Where one person discharges the liability of another, that person may seek to recover the amount he has paid from the person whose liability he has discharged. Therefore, if T-2 fails to pay rent and T is forced to discharge his liability for unpaid rent, he can attempt to recover that amount from T-2.
  46. s77 LPA 1925; Sch 12 Para 20 LRA 2002
    Enforceability of leasehold covenants; old leases; indemnity coverage

    Although T remains 'on the hook', T-1 is not necessarily 'off the hook'. T may have obtained an express indemnity agreement from T-1.

    Even if he did not, this will be implied by statute.

    • Unregistered land: s77 LPA 1925
    • Registered land: Sch 12 Para 20 LRA 2002
  47. s5 Landlord and Tenants (Covenants) act 1995
    Enforceability of leasehold covenants; new leases; who is liable?

    Where the lease is a new lease (ie on or after 1 Jan 1996) and T assigns the lease, he is released from the tenant covenants - s5(2)(a) T will not, therefore, be liable for the breach committed by T-1.

    T will also cease to have the benefit of the landlord covenants s5(2)(b)
  48. s6 Landlord and Tenant (Covenants) Act 1995
    Enforceability of leasehold covenants; new leases; who is liable?

    The 1995 Act does not provide an automatic release for landlords (unlike tenants) so L has to apply to the tenant for a release s6(2)(a). It is therefore possible for L to remain liable after the reversion has been assigned to L-1.
  49. s3 Landlord and Tenant (Covenants) Act 1995
    Enforceability of leasehold covenants; new leases; who is liable?

    Where T assigns a lease to T-1, T-1 takes the burden of the tenant covenant s3(2)(b) and acquires the benefit of the landlord covenant s3(2)(b) as long as the covenants are not expressed to be personal s3(6)(a)

    Where L assigns the freehold to L-1, L-1 takes the burden of the landlord covenant s3(3)(a) and acquires the benefit of the tenant covenants s3(3)(b) as long as the covenants are not expressed to be personal s3(6)(a)

    Nb- L-1 also acquires the benefit of the right of re-entry. s4
  50. s16 Landlord and Tenant (Covenants) Act 1995
    Enforceability of leasehold covenants; new leases; who is liable?

    Where lease contains either an absolute or qualified covenant against assignment, L may, before giving consent, impose a condition that T must agree to guarantee the performance of T's covenants by the assignee (T-1). This is known as a an authorised guarantee agreement (AGA). The AGA will cease to operate once the successor assigns.

    Thus T will not be liable for any breach committed by T-2 as, even if he entered into an AGA, that AGA will no longer be valid after T-1 assigned the lease. T-1 may be liable if he was called by L to enter into an AGA in respect of T-2.
  51. s19 limitations Act 1980
    Enforceability of leasehold covenants; remedies for breach of covenants

    L may sue T for a debt. However, L is prevented by s19 from bringing such a claim after the expiration of 6 years from the date on which the arrears became due.
  52. s17 landlord and Tenant (Covenants) Act 1995
    Enforceability of leasehold covenants; remedies for breach of covenants

    Where L is suing a former T on an AGA (new tenancies) or the original T under privity of contract (old tenancies) for arrears of rent, L must serve six months notice from the point the rent is due. s17(1)
  53. Fuller v Happy Shopper Markets
    Enforceability of leasehold covenants; remedies for breach of covenants; distress

    L may attempt to seize any possessions from the land of the demised premises and recover rent by selling items. However, in this case Lightman J said that landlords should take extreme care when taking this course of action, which he said may be in contravention of Art. 8 ECHR (respect to privacy and home).
  54. Re Ellenborough Park
    Easements; essential characteristics

    The CofA set out four characteristics necessary for a valid easement:

    a) There must be a dominant and servient tenement (ie you must have two parcels of land, one of which has the benefit of the easement and the other of which has the burden of it)

    b) An easement must 'accommodate' the dominant tenement;

    - The CofA agreed with the submission that it was not enough to show that the right (easement) enhanced the value of the dominant tenement. The person claiming the right had to show that it was connected with normal enjoyment of the property. Whether or not there is a sufficient connection between a right and the normal enjoyment of property is a question of fact.

    c) The dominant and servient tenements must not be owned and occupied by the same person

    d) A right over land cannot amount to an easement unless it is capable it is capable of forming the subject matter of a grant.
  55. Rangely v Midland Railway Co
    Easements; characteristics of an easement; dominant and servient tenements

    Lord Cairns made it clear that there can be no easement so properly called unless there is both a dominant and servient tenement. 

    'There can be no such thing as an easement in gross'. Thus if the person trying to claim an easement does not have any land, he cannot have an easement.
  56. Bailey v Stephens
    Easements; characteristics of an easement; easement must 'accommodate' the dominant tenement.

    The right enjoyed by the dominant tenement has to be one which not only enhances the owner's enjoyment of the land, but also is sufficiently connected with the land.

    'A right of way over land in Northumberland cannot accommodate land in Kent'.

    Nb- must accommodate land, not the person (not too specific to the owner)
  57. Dyce v Lady James Hay
    Easements; characteristics of an easement; must be capable of forming the subject matter of a grant

    'The category of easements must alter and expand with the changes that take place in the circumstances of mankind.'

    Therefore, many different types of easement may arise.
  58. Hunter v Canary Warf
    Easements; characteristics of an easement; must be capable of forming the subject matter of a grant; the owner of the servient tenement must not be deprived of too many of his right

    Lord Hoffman referred to the case of Dalton v Angus where the right to a view was said to impose a burden on 'a very large and indefinite area.'

    Thus the right to a view could prevent someone for building over a very large area of land, which would deny land owners the right to use their own land.

    This should be contrasted with the right to light, air etc. which would only impose a burden on immediate neighbours.


    Also, a person erecting a building has no means of knowing precisely what its effect will be on TV reception. Also, as with the right to a view, this would impose an immense burden on a person wishing to build on his land. He could be sued by 'an indeterminate number of Cs, each claiming compensation in a relatively modest amount'

    Also, in the planning permission stage people are often given an opportunity to raise these type of issues.
  59. Phipps v Pears
    Easements; characteristics of an easement; must be capable of forming the subject matter of a grant; the owner of the servient tenement must not be deprived of too many of his right

    The court refuse to recognise as an easement the right for a wall of a detached house to enjoy protection from the weather from the wall of an adjoining house. Such an easement would have been a negative one because it would have prevented the neighbour from demolishing his own house.

    Lord Denning considered that negative easements had to be viewed with caution as they could prevent a neighbour from enjoying his land to the full and would mean he could not be free to carry out legitimate development.
  60. Allen v Greenwood
    A greenhouse is a building and is entitled to the amount of light needed to cultivate plants
  61. Colls v Home & Colonial Stores Ltd
    Easements; characteristics of an easement; must be capable of forming the subject matter of a grant; the owner of the servient tenement must not be deprived of too many of his right

    An example of a negative easement which the courts have accepted is a right to light. However, such a right must be though a specific aperture (eg window) and cannot be a general right to light.
  62. Copeland v Greenhalf
    Easements; characteristics of an easement; must be capable of forming the subject matter of a grant; the owner of the servient tenement must not be deprived of too many of his right

    A right may not be capable of forming the subject matter of a grant if the easement in question effectively excludes the owner from using the land himself.

    In this case C owned an orchard and a strip of land leading to the orchard from the road. D and his father before him had used part of C's strip of land for more than 50 years to store their customers' vehicles. D claimed that he had acquired an easement by prescription. The court held that as there was no limit placed on the number of vehicles that could be stored on the strip of load, nor on the length of time for which they could be stored, the effect was to exclude the C owner. This was not a claim for an easement, therefore, but for possession of land.
  63. London & Blenheim Estates Ltd v Ladbroke Retail Parks; Bachelor v Marlow
    Easements; characteristics of an easement; must be capable of forming the subject matter of a grant; the owner of the servient tenement must not be deprived of too many of his right

    London & Blenheim Estates v Ladbroke Retail Parks

    The essential question is one of degree. The right would not be an easement if the effect of it was to leave the servient owner without any reasonable use of his land.

    Bachelor v Marlow

    The exclusive right to park six cars for nine and a half hours every day was so extensive a right as to leave the appellants without any reasonable use of their land. It was, therefore, too extensive a right to amount to an easement.
  64. Wong v Beaumont Property Trust
    Easements;implied legal easements; easements after the sale of part of land; easements of strict necessity

    Lord Denning said that in order to use C's restaurant (which was leased from D) as a restaurant, there must be an implied easement by necessity to carry a duct up the wall.

    This was an easement of strict necessity. Without it, no use could have been made of the land. In this case, without proper ventilation, the restaurant would have had to close down. The easement was implied into the lease and legal.

    Generally, if the parties intend that the land is to be used in particular way, any easements that are required to enable it to be used in that way will be implied into the sale of part deed. This would be an easement of common intention of the buyer and seller at the time of the sale.
  65. Wheeldon v Burrows
    Easements;implied legal easements; easements after the sale of part of land- buyers; the rule in Wheeldon v Burrows

    Thesiger LJ indentified an important general rule allowing the buyer on a sale of part to acquire an implied easement over the retained part of land of the seller where no express provision has been made. He said that the buyer would get such an easement if the right was:

    • a) continuous;
    • b) apparent;
    • c) necessary for the reasonable enjoyment of the land; and
    • d) being used a 'quasi-easement' by the seller for the benefit of the part of the land being sold at the time of the sale of part.

    Nb. Sellers may not claim an easement under the Wheeldon v Burrows rule if they sell part of land they were using as a quasi-easement unless they are able to claim it out of necessity (ie they are landlocked). Thesiger LJ said ‘a grantor shall not derogate from his grant’- in other words ‘a grantor having given a thing with one hand is not to take away the means of enjoying it with the other’ [Birmingham, Dudley & District Banking Co v Ross 1888].

    • Only applies where a sale of part has occurred.
  66. Ward v Kirkland
    Easements;implied legal easements; easements after the sale of part of land- buyers; the rule in Wheeldon v Burrows; 'continuous and apparent'

    ‘Continuous and apparent’ requires some feature to be present on the servient tenement which would be apparent on an inspection.

    The feature must be one that had a degree of permanence, such as drains or a path.
  67. s62 Law of Property act 1925
    Easements;implied legal easements; easements after the sale of part of land- buyers; easements implied by statute

    • Following s62 LPA 1925, words are implied into the conveyance of land including all the buildings that are on it and any easements
    • that existed already.

    • Section 62 does not generally apply unless there is diversity of occupation at the time of conveyance. This means that part of the
    • land will usually be tenanted initially and then either the lease or part is renewed, or the tenant acquires the freehold estate of part of the land. Both would amount to a ‘conveyance’ under s62.

    Therefore, for a new easement to be created under s62:

    a) prior to the sale of part, the ‘dominant’ land enjoyed the benefit of a license or permission capable of being an easement;

    b) there was (generally) diversity of occupation at the time of the sale of part;

    • c) a sale of part occurred (sale of freehold of
    • part or legal lease of part)

    Only applies where a sale of part has occurred.
  68. Wright v Macadam
    Easements;implied legal easements; easements after the sale of part of land- buyers; easements implied by statute; interpretation of s62 LPA 1925

    • Mrs Wright was a tenant of a property who had a mere license (permission) to use a coal shed. However, when she was granted a new tenancy this amounted to a conveyance of land and the general words were implied into it. As the CofA considered the right to use the shed to be one capable of being an easement, its implied inclusion in a deed effected the grant and transformed it from
    • being a license into a legal easement.
  69. Simmons v Dobson
    Easements; prescribed legal easements; the position at common law

    The two methods of prescription are common law prescription and the doctrine of lost modern grant.

    At common law, where a person claimed a right by long user, the claim had to be based on the presumption that such a right had been granted and exercised since time immemorial (1189). Clearly it was virtually impossible to establish this. As a result, the courts were prepared to presume, where user had been ‘as of right’ for 20 years, that the use had been a continuous one since 1189. This was only a presumption, however, and it could easily be rebutted if it could be shown that the right could only have arisen some time after 1189.

    Because of the difficulty with the common law, the judges developed the Doctrine of Lost Modern Grant. This was based on a pure fiction. Where user had been made for 20 years, it was assumed that there had been a deed granting the right but that the deed had been lost. Although the basic common law claim is not often successful, the claim based on the Doctrine of Lost Modern Grant is frequently relied upon in practice and often succeeds. It is particularly useful where 20 years’ use has been established and then there has been a break in the use as the Prescription Act 1832 (see below) would not apply here.
  70. s2 Prescription Act 1832
    Easements; prescribed legal easements; Prescription Act 1832

    Section 2 of the Prescription Act 1832 prevents a common law claim to a non-light easement by prescription being defeated (in common law) where the easement has been enjoyed without interruption for a full period of 20 years.

    The section does not, however, prevent the claim to an easement being defeated in some other way, for example by showing that oral or written consent to the use was given at any time, as the common law conditions must still be satisfied.

    Where the right claimed is one that has been enjoyed for a full period of 40 years then it becomes ‘absolute and indefeasible’ unless it can be shown that its enjoyment depends on some express written consent.
  71. s4 Prescription Act 1832
    Easements; prescribed legal easements; Prescription Act 1832

    Section 4 of the Prescription Act 1832 qualifies s 2 in two respects:

    1. It requires the 20- and 40-year periods to be ‘next before some suit or action’, This means that, first, no right to an easement arises until a court action is brought to claim it and, secondly, the 20 or 40 years’ use must be continuous right up to the date of that court action.

    2. This section also states that any interruption to the enjoyment of the right being claimed is ignored, unless the person making the claim allows it to continue for a year after becoming aware of both the interruption and of the person who is responsible for the interruption. (An interruption is any action which interferes with the right being claimed.)
  72. s3 Prescription Act 1832
    Easements; prescribed legal easements; Prescription Act 1832

    Under s 3, in the case of an easement of light, there is only one period, that of 20 years.

    If the access and use of light has been enjoyed for this period without interruption and without written consent, it becomes absolute and indefeasible.

    Rights of light can be acquired only in respect of buildings. To establish a claim to a right of light under the Prescription Act, the claimant must show not only that there is access of light, but also that there is use being made of it. Unlike other easements, the user does not have to be as of right. All that need be shown is that the use has been enjoyed for 20 years without interruption next before action and without written consent.

    The statute gives no guidance, however, as to the amount of light to which the dominant tenement is entitled. This is a matter for the courts to decide, and they have held that the entitlement is to ‘sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment … or for the beneficial use and occupation of [the building]’ (Colls v Home & Colonial Stores Ltd).

    Each case will be decided on its own facts, as there is no rule of law that a window must receive a certain amount of light. An important factor to take into account is the extent of the burden on the servient land.
  73. s79 LPA 1925
    Freehold covenants; liability of original covenantor

    Under s 79 of the Law of Property Act 1925, the covenants relating to the land of the covenantor shall be deemed to have been made by the covenantor on behalf of his successors in title and persons deriving title under him, as well as on behalf of himself.  This will be so unless the deed contains a statement to the contrary.
  74. s78 LPA 1979
    Freehold covenants; benefit of covenant

    s78 Benefit of covenants relating to land

    (1) A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them, and shall have effect as if such successors and other persons were expressed.
  75. Smith and Snipes Hall Farm
    Freehold covenants; does benefit of covenant pass automatically at common law?

    For the benefit of a covenant to pass automatically at common law the following requirements have to be met:

    1. The covenant must ‘touch and concern’ the land of the covenantee. 

    • Tucker LJ said that it is necessary for the covenant to ‘touch and concern’ the land of the covenantee. By this he meant that the covenant must either affect the mode of occupation of the land, or must by itself
    • affect the value of the land. It is apparent from this requirement that the covenantee must, at the date of the deed, own land, that is capable of benefiting from the covenant and that the land must be identifiable.

    2. Both the original covenantee and the person now seeking to enforce the covenant must have a legal estate in the land.

    • It was the position at common law that the person seeking to enforce the covenant had to have the same legal estate as the original covenantee. In Smith and Snipes Hall Farm, however, one of the claimants was a tenant and therefore did not have the same legal estate as the original covenantee, who was a freehold owner. Nevertheless, the Court of Appeal considered that s 78 of the Law of Property Act 1925 had now altered the position, because under it a covenant relating to land of the covenantee is deemed to be made not only with the covenantee’s
    • successors in title, but also with ‘the persons deriving title under him or them’. A person having an equitable estate is not, of course, able to claim the benefit of a covenant at common law.

    • 3. The original parties must intend that the benefit of the covenant is to run with the land
    • It had to be shown that the parties to the deed intended the covenant to be enforceable not only by the original covenantee, but also by successors in title to the original covenantee. Such intention could be shown by express annexation of the benefit of the covenant to the land of the covenantee in the deed in which the covenant is created, or deemed annexation under statute (s 78 of the Law of Property Act 1925.  However, deemed annexation will apply only to covenants created after 1925.
  76. Austerberry v Oldham Corpn
    Freehold covenants; does burden of covenant pass to successor in title at common law?

    The burden does not run. A person cannot be made liable upon a contract unless he was party to it. As the successor to the covenantor was not a party to the contract in which the covenant was created, the common law will not impose the burden of the covenant upon him.
  77. Halzell v Brizell; Rhone v Stephens
    Freehold covenants; does burden of covenant pass to successor in title at common law?

    • The principle in Halsall v Brizell is that a successor in title who takes the benefit of rights contained in a deed must accept the burden of covenants contained in the same
    • deed.  This is also referred to as the ‘principle of mutual benefit and burden.'

    • The House of Lords in Rhone v Stephens interpreted the principle of benefit and burden rather narrowly.  Lord Templeman took the
    • view that just because a deed conferred a benefit on a person, it did not mean that all the burdens imposed by that deed became enforceable.  The burden must in some way relate to the benefit conferred

    This will be so where the covenantor can make a choice between accepting the benefit and burden, or rejecting the benefit and thereby being released from the burden.
  78. Federated Homes v Mill Lodge Properties
    Freehold covenants; does the benefit of the covenant run in equity?; s78 LPA 1925

    Brightman LJ favoured the view that s78 LPA 1925 operates to annex the benefit of a covenant to a covenantee's land automatically, without the need for express words.
  79. Walsh v Lonsdale
    • The rule in Walsh v Lonsdale can be briefly
    • stated as the principle that, in equity, 'an agreement for a lease is as good as a lease'. This case gave its name to an important equitable principle, which has the effect of 'saving' a lease, or other grant, where the parties have attempted to create a legal estate, but have not satisfied the formality, as set out in section 52(1) of the Law of Property Act 1925, of executing a deed.

    It is important to note that latterly section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 requires that a contract to create an interest in land must be in writing and signed by the parties. If this requirement is not satisfied then there is no contract to create a lease and so the rule cannot apply.
  80. Tulk v Moxhay
    Freehold covenants; does burden of covenant run in equity?

    Equity was prepared to enforce a covenant against a successor in title to the original covenantor where that successor had notice of that covenant.The criteria has been refined as follows:

    (a) the covenant must be restrictive in nature;

    (b) the covenantee owned land for the benefit of which the covenant was taken, ie the covenant must ‘touch and concern’ the land of the covenantee;

    (c) the parties must have intended the burden to run with the covenantor’s land. This may be done expressly in the deed creating the covenant.  The following are examples of such express wording:

    • (i) ‘to the intent that the burden of the covenants will run with and bind the property and every part of it’,
    • (ii) ‘so as to bind the property hereby transferred’.  

    In the absence of express wording, such intention may be implied by s 79 of the Law of Property Act 1925. The effect of s 79 is that, unless a contrary intention is expressed in the deed, it will be implied by statute that the parties intended the burden to pass to successors in title.

    However s 79 will only apply to the burden of covenants created after 1925;

    (d) the person against whom it is sought to enforce the covenant must have notice of it. If the title to the covenantor’s land is registered then the restrictive covenant will be an interest affecting a registered estate. 

    The method of protection is to enter a notice on the Charges Register before registration of the successor as the new proprietor.Where the title to the land is unregistered, the restrictive covenant will be protected by the entry of a Class D(ii) land charge against the name of the original covenantor on the Land Charges Register before the date of completion of a sale to a successor.

    However, if the restrictive covenant was created before 1925, it will be binding on a purchaser, unless that purchaser is equity’s darling.  

    • Pre-1926 restrictive covenants cannot be registered as land charges and they will be
    • enforceable against everyone, except a bona fide purchaser for value of the legal estate without notice.

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