Easements, rights and covenants

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Featured Property content

What is a certificate of title?

A certificate of title (also known as a certificate on title) is a particular species of report on title.When solicitors are instructed to investigate...

Overreaching—sales by trustees of land

Broadly, the doctrine of overreaching enables purchasers (which includes tenants and mortgagees) in good faith for money or money’s worth to rely...

Standard Commercial Property Conditions (Third Edition—2018 Revision)

The third edition of the Standard Commercial Property Conditions was published on 27 April 2017 a...

Underletting at less than the passing or market rent

When property markets suffer a downturn, commercial tenants with properties that are surplus to requirements face significant difficulties in...

Practice notes

Remedies for breach of restrictive covenants

Damages or injunction — the testThe primary remedy for breach of a restrictive covenant is a permanent injunction to restrain the breach. However, the...

9th Nov

Practice notes

Pre-completion searches

Official search with priority—registered land or seller’s title pending first registrationHow and when to search?An official search with priority will...

9th Nov

Practice notes

Consecrated ground and burial grounds—issues for developers

Consecrated land—Church of EnglandFor the purposes of this section of this Practice Note, consecrated land means any land or building which has been...

9th Nov

Practice notes

Tacit relocation in commercial leases in Scotland

In Scotland, at common law, a lease does not actually end on the specified expiry date (ish) unless:•either party gives correct and timeous...

Produced in partnership with Kenneth S Gerber of Mitchells Roberton 12th Jan

Scottish Law

Practice notes

Insurance—non-vitiation (non-invalidation) clauses

Vitiation of an insurance policyAn insurance policy may be vitiated (or invalidated) if the insured:•misrepresents or fails to disclose any material...

9th Nov

In-house

Precedents

Specific clauses for transfers—indemnity covenant

Panel 11 (transfer of whole)/panel 12 (transfer of part)—Additional provisions1Definitions[Lease•the lease particulars of which are set out in...

9th Nov

Practice notes

Easements—actionable interference

Wrongful interference with an easement is a private nuisance. The existence of the easement must be established for a claim to succeed.Not every...

9th Nov

Precedents

Deed of grant of easements

This Deed is made on [insert date]PARTIES1[insert name of the owner of the Servient Land] [ of [insert address] OR incorporated in England and Wales...

9th Nov

Q&As

Section 58 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) automatically transfers any existing mortgages on a leasehold title when the lease is extended under LRHUDA 1993. Therefore it is not necessary to obtain the mortgage company's consent to the lease extension. However, if there is a mortgage on the landlord's title, does the landlord need to obtain consent or does LRHUDA 1993, s 58 also render obtaining consent unnecessary?

Section 58 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) governs the position in respect of mortgages both of the...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 12th Jan

Precedents

Transfer of part

Transfer of partPrecedent transferAn adaptable Word version of the precedent form TP1 can be downloaded, saved or printed from this link:Drafting...

9th Nov

Practice notes

Lease variations—surrender and re-grant issues

The implied or deemed surrender and re-grant of a lease arises where an agreed variation of the terms of the original lease is so fundamental that the...

9th Nov

Precedents

Rent Review Memorandum

Rent Review MemorandumLandlord•[insert full name of Landlord] [of [insert address] OR incorporated in England and Wales with company registration...

9th Nov

Practice notes

A review of Standard Commercial Property Conditions (Third Edition) and practical tips

The Third EditionThe third edition of the Standard Commercial Property Conditions was published on 27 April 2017. It is an update to Standard...

9th Nov

Practice notes

Conditional contracts—property

Contracts are often drafted on the basis that a condition or conditions must be satisfied before completion takes place (a condition precedent)....

9th Nov

Practice notes

Double funding

Brexit: The UK left the EU on 31 January 2020. This has implications for the schemes providing for agricultural subsidies in England and Wales, which...

9th Nov

Practice notes

Sub-sales and assignments

A sub-sale is where A contracts to sell a property to B but, before completing the purchase from A, B then contracts to sell the property to C. There...

9th Nov

Most recent Easements, rights and covenants content

Q&As

Are there any statutory provisions which would permit an electricity distributor to repair an electricity cable underneath construction works? Alternatively, are there any statutory provisions which prevent construction works taking place within a specified distance of any underground electricity cables?

An electricity distributor is a potential licence holder under section 6 of the Electricity Act 1989 (EA 1989).Underground electricity cables will...

Produced in partnership with Tracy Lovejoy of Lanyon Bowdler 27th Jan

Q&As

What rights of access do gas companies enjoy for the purpose of maintenance and repair of utility installations?

Gas companies’ rights to enter premises for maintenance and repair are statutory rights, mainly from the Rights of Entry (Gas and Electricity Boards)...

Produced in partnership with Bethany Pickup of Browne Jacobson 27th Jan

Q&As

Where a statutory undertaker requires access to a property to carry out statutory gas works, can the property owner claim compensation from the statutory undertaker in respect of any costs it incurs as a result of these works, for example for the removal and storage of furniture?

Rights of entryAs with supplies of water and electricity, those who carry out essential functions relating to the supply of gas have powers of entry...

Produced in partnership with Jonathan Edwards of Radcliffe Chambers 27th Jan

Q&As

Under what circumstances can a distribution network operator (DNO) exercise statutory rights for a new wayleave request? Does a DNO have powers to upgrade a connection where a wayleave is already in place?

A distribution network operator (DNO) can exercise its powers to obtain a necessary wayleave regardless of the number of connecting parties; however,...

Produced in partnership with Matthew Collinson of Igloo Energy 26th Jan

Q&As

Can a new land owner make use of an historical right of way?

The doctrine of lost modern grant is useful where the enjoyment of the land does not continue up to the commencement of the action (in contrast to the...

22nd Jan

Q&As

Can a right of way over land for utilities and to 'repair, maintain and renew' the services be interpreted to include the right to install services if it is found the services have not been constructed?

The answer to this Q&A depends on the true construction of the words used in the grant of the easement.The most recent reported case in this area is...

Produced in partnership with Helen Galley of XXIV Old Buildings 22nd Jan

Q&As

What is the process of proving that an easement exists under the Prescription Act 1832? Can an action be brought by one person on behalf of the general public?

An easement may be established by long use by statute (Prescription Act 1832 (PA 1832)).We are assuming that this Q&A relates to a right of way.The...

22nd Jan

Q&As

Is there a statutory scheme which protects the landowner from express wording in a conveyance excepting mines and minerals which states support can be withdrawn and access can be obtained from or to the surface to facilitate underground mining?

We are not aware of a statutory scheme which would protect a landowner from the exception of mines and minerals in a conveyance provided the exception...

22nd Jan

Q&As

Does a lease have the benefit of the right of way over intervening land by operation of section 187 of the Law of Property Act 1925 (LPA 1925) (as this is an easement benefiting the landlord's title) or does it lose that benefit because either it is not expressly re-granted in the lease (which seems difficult to do, as the landlord does not own the intervening land) or because LPA 1925, s 62 is excluded?

Case studyA lease grants an access way over the landlord’s adjoining property (all of the landlord's land is under one registered title). The boundary...

22nd Jan

Q&As

The owner of an estate road is under obligation to maintain the road. Owners of the plots on the estate have a right to use the road but the transfers of the plots did not provide for any of the plot owners to contribute to maintenance. Is there any case law which would support the proposition that a plot owner exercising rights of way should be liable to contribute towards the expenses of maintaining the road in the absence of a positive covenant to do so?

A right of way is an easement for the benefit of one plot of land (the dominant tenement) over another plot of land (the servient tenement) and is...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 22nd Jan

Q&As

Would it be a breach of the following covenant to use the property for holiday lets: ‘Not to use or permit to be used the property for the carrying on of any trade or business whatsoever and will use the same as a single private dwelling house only’?

If the lease states that the flat can only be used as a private residential property, then it would be a breach of the lease to use the property for...

22nd Jan

Q&As

Can the owners of a property fronting an unadopted road (which they enjoy a right of way over) force an adjoining landowner to contribute to a proportion of the cost of repair and/or of bringing the road up to an adopted standard, if the council decided to adopt it, if there is a positive covenant to repair which is backed up by an indemnity covenant in the title?

Case studyThe landowner with the burden of the positive covenant to maintain/repair has no requirement or ability to use the unadopted road and access...

Produced in partnership with David Sharpe of 12 King's Bench Walk Chambers 22nd Jan

Q&As

My client is buying a freehold profit à prendre in gross relating to shooting rights affecting neighbouring property. How can I establish the extent of what is implied into 'shooting'?

We refer you to Halsbury's Laws of England > ANIMALS (VOLUME 2 (2008)) > 4. GAME RIGHTS > (1) OWNERS' AND TENANTS' RIGHTS > (ii) Tenants' Rights > A....

22nd Jan

Q&As

Does a restrictive covenant prohibiting the use of a property as a hairdresser shop, prohibit its use as a barbershop?

It is not always clear cut when it comes to interpreting the language and meaning of a restrictive covenant, and each case will turn on its own facts....

Produced in partnership with Georgia Whiting of 4 King’s Bench Walk 22nd Jan

Q&As

Where an easement has been gained by prescription over a long period of use, what rights does the dominant landowner have to maintain the right of way? Can he force the servient owner to accept that repairs are necessary if he is willing to carry them out at his own expense?

In summary, the dominant owner of a right of way acquired by prescription has the right of repair but not a right to improve the servient land.A right...

Produced in partnership with Daniel Gatty of Hardwicke Chambers 22nd Jan

Q&As

What fees can be charged for granting consent under a freehold restrictive covenant? Are these limited to reasonable fees in line with the limitations placed on landlords?

The first consideration is the wording of the covenant itself. On the assumption that the covenant does not identify specific heads of expenditure...

22nd Jan

Q&As

If there is a restrictive covenant on a registered title stating that the land cannot be used other than as a sports/playing field, does the new Telecoms Code override this and can the landowner be forced to grant a lease in breach of covenant?

This question raises the interplay between private law rights and obligations affecting land and the statutory rights and duties which exist between...

22nd Jan

Q&As

The tenant of a long lease proposes to grant an easement to subsist for the remainder of the term of the lease. The landlord will consent to the granting of the easement. If the lease terminates for any reason, will the landlord (having consented to it) be bound by the terms of the easement?

An easement is an incorporeal right enjoyed by the owner of a legal estate (dominant tenement) over land in the ownership of another person (servient...

22nd Jan

Q&As

Is it possible to acquire a prescriptive right to drive farm machinery along a bridleway (ie if there is evidence of prior use for that purpose)? Can vehicular rights of access be granted over a bridleway?

'Bridleway' means a way over which the public have the following, but no other, rights of way: a right of way on foot and a right of way on horseback...

Produced in partnership with Andrew Maguire of St Philips Chambers 22nd Jan

Q&As

Do you know of authority for the proposition that the use of an easement/right of way should be determined from the time the easement was granted? What is the position where a landowner owns a car park over which a neighbour claims rights of access under an ancient deed, before cars were in common use.

This Q&A assumes that the easement as originally drafted does not refer to cars, but the owner of the dominant land wishes to use the right of way for...

22nd Jan

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Easements, rights and covenants

View Property by content type:

Latest Property News

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Featured Property content

What is a certificate of title?

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