Easements, rights and covenants

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Latest Property News

Property weekly highlights—15 April 2021

The following Property news provides comprehensive and up to date legal information on Property weekly highlights—15 April 2021

Agency—undisclosed commission—rescission—whether fiduciary relationship required (Wood v Commercial First Business)

The following Banking & Finance news provides comprehensive and up to date legal information on Agency—undisclosed commission—rescission—whether fiduciary relationship required (Wood v Commercial First Business)

Court refuses to imply term regarding timescale for service of break notice (Wigan BC v Scullindale Global Ltd)

The following Property Disputes news provides comprehensive and up to date legal information on Court refuses to imply term regarding timescale for service of break notice (Wigan BC v Scullindale Global Ltd)

Restructuring plan meetings convened on tight timetable in face of strong landlord opposition (Re Virgin Active Holdings Ltd)

The following Banking & Finance news provides comprehensive and up to date legal information on Restructuring plan meetings convened on tight timetable in face of strong landlord opposition (Re Virgin Active Holdings Ltd)

Featured Property content

Constructive trusts

Millett LJ subdivided types of constructive trust into two categories, distinguishing between:•the constructive trust proper, where equity intervenes...

The equity of redemption

Disposal and devolutionThe equity of redemption arises as soon as the mortgage is made. It is an interest in the land which the mortgagor...

Equitable mortgages and equitable charges—general principles and registered land

Nature of mortgages and chargesMortgages and charges are distinct forms of security. A mortgage can be legal or equitable and involves the transfer of...

Quistclose trusts

What is a Quistclose trust?A Quistclose trust is an example of an ‘automatic’ resulting trust, ie a trust which arises where property is transferred...

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

Derogation from grant and the covenant for quiet enjoyment

The rule against derogation from grant applies in addition to any obligation of quiet enjoyment. It is not excluded by an express covenant for quiet...

9th Nov

Practice notes

Implied easements—common law

There are three different ways by which an easement can be implied at common law:•necessity•intended use•the rule in Wheeldon v BurrowsThe implied...

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

Practice notes

Applying the proceeds of sale

Sale by a mortgagee destroys the equity of redemption in the mortgaged property. The sale defeats the rights of all subsequent incumbrancers, whose...

9th Nov

Practice notes

Fixtures and fittings

When transferring an interest in land, any fixtures form part of the land and are transferred with it, unless there is express provision to the...

9th Nov

Precedents

Template completion statement—sale

An adaptable Word version of this Precedent can be saved, downloaded or printed from this link:Completion statement—saleThis Precedent is a template...

9th Nov

Q&As

Does the doctrine of unity of seisin apply as between two parcels of land held under one title (residential part and retained part) where—a owns the whole property and transfers the beneficial interest in the residential part to B under a lifetime trust? A and C jointly own the whole property and transfer the beneficial interest in residential part to B under a lifetime trust, A and C retain the legal interest in the residential part and A retains sole legal and beneficial interest in the retained part?

The ‘unity of seisin’ rule dictates that easements and profits cannot exist where the dominant and servient land are in common ownership and...

9th Nov

Practice notes

Completion monies—the SCPCs

How should the money be transmitted?Most contracts relating to commercial property incorporate either the second or third editions of the Standard...

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

What is a good and marketable title?

A good marketable title is shown where a seller is able to deduce a good title to the property he has contracted to sell. The seller is not required...

9th Nov

Precedents

Disclosable overriding interests questionnaire

You are applying for registration of [insert details of property] at HM Land Registry and as part of that application you must disclose any overriding...

9th Nov

Precedents

Deed of release of covenants

This Deed is made on [date]Parties1[name of person releasing the covenants] [of [insert address] OR incorporated in England and Wales with company...

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

Practice notes

Creation and registration of common land

What is common land?The term ‘common land’ usually includes all land which is subject to rights of common, ie the rights which one or more ‘commoners’...

30th Mar

Q&As

A freehold landowner uses a bridleway on their land as an access track. There are no restrictive covenants affecting the landowner's use of the access. Does the landowner have the right to drive a vehicle down the bridleway on the basis that as legal owner they have 'lawful authority' to do so?

Section 329(1) of the Highways Act 1980 defines a bridleway as a highway over which the public have a right of way solely on foot and on horseback or...

29th Mar

Q&As

What use class of the Town and Country Planning (Use Classes) Order 1987 (UCO 1987) does use as a 'highway' fall in to? If land is subject to a restrictive covenant prohibiting any use except uses within classes B1, B2 or B8 of the UCO 1987, would use of the land as a highway be a breach of the restrictive covenant?

Planning use classes in England and Wales are described and classified in the Town and Country Planning Use Classes Order 1987 (UCO 1987), SI...

26th Mar

Q&As

Do the rights granted pursuant to section 62 of the Law of Property Act 1925 benefit tenants on the grant of a lease?

Section 62 of the Law of Property Act 1925 (LPA 1925) provides that every 'conveyance' of land is deemed to include and operates to convey, with the...

23rd Mar

Q&As

Can a landowner grant a private right of way over a bridleway allowing access to and egress from a residential dwelling?

A 'bridleway' is 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...

17th Mar

Q&As

When selling land with the benefit of easements, must the easements also be recorded on the servient land's title?

We assume that both the dominant and servient land were registered at the time the easement was granted.For an easement to have protection, it must be...

17th Mar

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 16th Mar

Practice notes

Easements lost by abandonment

In order to show that an easement has been abandoned, the servient owner must show that the dominant owner had a clear and fixed intention never...

12th Mar

Practice notes

Easements—extinguishing

There are different ways in which an easement may cease to exist and this Practice Note looks primarily at unity of seisin, also known as unity of...

12th Mar

Q&As

In relation to an extinguishment of easements on a large residential development, when selling off each plot, the developer granted but also reserved rights of way to themselves and successors-in-title. Two adjoining plots (with two separate houses) were sold to the same person under two separate transfers with rights of way granted and reserved. The two plots remained in the ownership of one person for a number of years, but now are under separate ownership. The owner of one of the houses wants to stop their neighbour exercising their right of way over a path crossing the owner’s land. Is it possible to have a part extinguishment of an easement where two plots were in common ownership?

An easement is extinguished where the freeholds of both the dominant and servient land come into the ownership of the same person. The relevant legal...

10th Mar

Practice notes

Rentcharges—apportionment, termination and enforcement

Coronavirus (COVID-19): the coronavirus pandemic has caused the UK to expedite new insolvency provisions, both of a temporary and permanent nature....

10th Mar

Practice notes

New Electronic Communications Code—Code rights

The new CodeThis Practice Note sets out the extent of the new Code rights, how they arise, ie by agreement made between the parties or by agreement...

10th Mar

Q&As

A septic tank serves property X. The neighbouring property Y also drains into the septic tank and has done for years, although there is no written agreement governing this. The owner of property X accepts that property Y has a prescriptive right to use the septic tank. The owner of Y has never paid any maintenance costs. X plans to replace the tank with a treatment plant. Can X do this and, if so, will Y have similar rights to use the treatment plant? Can X claim a contributions from Y in respect of installation and maintenance costs?

This query concerns whether the owner of land (the servient owner) on which an existing septic tank is situated and over which a neighbour enjoys...

Produced in partnership with Catherine Budd of Landmark Chambers 8th Mar

Q&As

What requirements come into force in January 2020 requiring replacement of septic tanks with local sewerage treatment plants? Where the septic tank is on third party land what is the extent of the right to enter onto a neighbour’s land and the scope of the works which may then be carried out where there is the benefit of a covenant which allows the user of the tank to ‘replace, renew and maintain’ the tank?

We assume that this Q&A is referring to changes made by the general binding rules concerning discharges from septic tanks to surface water.New...

5th Mar

Practice notes

Modification and discharge of restrictive covenants—the statutory route

See Practice Note: Modification and release of restrictive covenants—the non-statutory route in relation to the non-statutory route.Application to the...

4th Mar

Q&As

A transfer sold land out of a title with the benefit of parking rights. There was a third party to the transfer, a management company. The rights are expressed to be granted by the transferor to the transferee and the transferee owes no obligations to the management company in respect of those rights. Can those rights be varied by deed between the transferor and transferee without joining the third party to the deed or do they need to be a party as they were a party to the original transfer which is being varied?

The transfer appears to be in tolerably common form—a tripartite agreement between vendor or lessor, purchaser or lessee and a management company. In...

2nd Mar

Practice notes

Rights of light—obstruction notices

This Practice Note summarises the light obstruction notice (LON) procedure, explains the 19 years and 1 day rule and its relevance in respect of...

25th Feb

Practice notes

Declaratory relief of planning decisions

A declaratory judgment is a judgment identifying the rights, duties or obligations of one or more parties in a dispute. It is legally binding, but...

25th Feb

Precedents

Deed of easement—overhead cables

This Deed of made on [insert date]Parties1[insert name of the owner of the Servient Land] [of [insert address] OR incorporated in England and Wales...

24th Feb

Precedents

Deed of easement—right of way

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...

24th Feb