Easements, rights and covenants

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Property weekly highlights—4 March 2021

The following Property news provides comprehensive and up to date legal information on Property weekly highlights—4 March 2021

Spring Budget 2021—views from the market

The following Private Client news provides comprehensive and up to date legal information on Spring Budget 2021—views from the market

Factors to consider on a statutory footpath diversion are not exhaustive (The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs)

The following Local Government news provides comprehensive and up to date legal information on Factors to consider on a statutory footpath diversion are not exhaustive (The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs)

Failing to set out basic allegations leads to strike out in insolvency proceedings (Sampathkumar v Wildwood CR)

The following Property Disputes news provides comprehensive and up to date legal information on Failing to set out basic allegations leads to strike out in insolvency proceedings (Sampathkumar v Wildwood CR)

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...

The Standard Conditions of Sale (5th edition: 2018 revision)—a guide to the main provisions

The Standard Conditions of Sale (SCS), currently in their 5th edition (2018 revision), are a set of standard conditions which are commonly...

Title guarantee and covenants for title

On the disposition of a property (whether by way of conveyance, transfer or charge), the party making the disposition will normally provide a title...

Manorial rights

Manorial rights are relics of the feudal system of land tenure. They can still exist in relation to land that:•is former copyhold land, or•was...

Practice notes

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...

9th Nov

Practice notes

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...

9th Nov

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

Standard Commercial Property Conditions (Second Edition)

The second edition of the Standard Commercial Property Conditions came into force on 1 June 2004 and these conditions are incorporated into many...

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

Precedents

Rent authority letter—commercial property

[To be printed on Landlord’s letterheaded paper]Our Ref:Date:To: [insert name of Tenant]From: [insert name of previous Landlord] [of [insert address]...

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

Letter/certificate of non-crystallisation in property transactions

What is a letter of non-crystallisation?A letter of non-crystallisation is required by a buyer’s/lender’s solicitor to confirm that:•a floating charge...

9th Nov

Practice notes

Insolvency—fixed charge receivership

Effect of appointmentA fixed charge receiver is appointed under a legal charge or mortgage and only has power to deal with and dispose of the charged...

9th Nov

Practice notes

Easements—nature and characteristics

Nature of an easementAn easement is an incorporeal right enjoyed by the owner of a legal estate (dominant tenement) over land in the ownership of...

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

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

Enquiries before contract

Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the COVID-19 outbreak....

9th Nov

Practice notes

Differences—joint insured and noting

Joint insuranceJoint insurance arises where two or more people insure separate insurable interests in the same property with the same insurer under a...

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

Precedents

Landlord’s Section 45 Counter—notice to Tenant s 42 Notice

Under s 45 Leasehold Reform Housing and Urban Development Act 1993 (the ‘1993 Act’)Flat:[insert address and description of the Property]To:[insert...

9th Nov

Most recent Easements, rights and covenants content

Q&As

A is granted a legal easement to access his land (field X) from the west. He then acquires field Y adjacent to X and to the east of X. Does the easement already granted now extend to allow A to enjoy the easement granted in respect of X from field Y, or does he have to negotiate a further easement for the benefit of field Y?

See Practice Note: Easements—can I add to the dominant land?Generally, the benefit of an easement will not extend to any land subsequently added or...

22nd Jan

Q&As

Following on from the question: Under the new Electronic Communications Code, following contractual expiry of a (Landlord and Tenant Act 1954 excluded) telecoms lease, would landlord break clauses have to be exercised in addition to serving an 18-month notice under Part 5? What is the position post expiry of the contractual term of a lease where the rights of occupation are continued by statute. Is it correct that the contractual term has ended so the contractual break clause cannot be operated? Alternatively, does the code effectively continue the contractual term so that the break clause still needs to be operated?

This Q&A considers the question of whether a contractual break clause must be exercised in order to terminate a telecoms lease in circumstances where...

22nd Jan

Q&As

If an easement secured on the title following an express grant is infringed upon by another third party's easement (acquired and registered by prescription) which takes precedence? Does this fact entitle a third party to claim that the express easement is now defective?

An easement is a right afforded to land (the dominant tenement) over adjoining land (the servient tenement). There are many types of easement, with...

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

Q&As

A grants a right of way to B. B purports to grant a licence to C to use the right of way but it appears that the licence is invalid because C’s use of the right of way is not for the benefit of the dominant land, as defined in the deed of grant. If C claims a prescriptive easement, could the licence granted by B defeat the claim?

An easement may be established by prescription in any one of three ways:•prescription at common law•prescription under the doctrine of a lost modern...

22nd Jan

Q&As

Is it possible to claim a prescriptive easement for tree overhang or root encroachment into neighbouring land?

In Lemmon v Webb, the House of Lords held that there could be no prescriptive easement entitling a dominant owner to overhang the servient tenement...

22nd Jan

Q&As

Where part of land is sold with the benefit of a right of way for access over the retained land (transfer 1) and the retained land is then sold without reference to this easement (transfer 2), if transfer 2 is registered at the Land Registry prior to the registration of transfer 1, can the now land locked purchaser in transfer 1 claim the easement still applies?

The grant of an easement must be protected by way of registration in order for it to be a legal easement and thus binding on successors in title of...

22nd Jan

Q&As

Can an easement be acquired by prescription over an access route which is used for fire escape purposes only?

It is unclear from the question whether what is being prescribed for:•is a right of way for fire escape purposes only over an access route, or•whether...

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

Q&As

Can a gas provider be granted an easement where the deed refers only to the servient land and the gas provider does not own neighbouring land?

Easements generallyOne of the four essential characteristics of an easement is that there must be a dominant and a servient tenement.There must be a...

22nd Jan

Q&As

What are the potential remedies against a landlord and the purchaser of an adjoining piece of land over which a tenant enjoys a right of way, when the right of way has been blocked?

Options for grantIn general, an order for the grant of a new tenancy pursuant to the Landlord and Tenant Act 1954 (LTA 1954) will be an order for the...

22nd Jan

Q&As

Can an easement be granted for the benefit of the dominant land where the grantee is not named—or is only identified as 'the owner of the freehold estate comprising the dominant land' (such freehold estate being identified in the deed of grant)?

No easement can exist without both an identifiable servient and dominant tenement and those two estates being in separate ownership. See Practice...

Produced in partnership with Brie Stevens-Hoare QC of Hardwicke Chambers 22nd Jan

Q&As

Where there is a right of way registered on the freehold title, will this right automatically pass to the leasehold title?

Where a freeholder seeks to demise their land, or part of their land, and that land is benefited by rights over third party land, it will be highly...

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

Q&As

Where a buyer and seller have exchanged emails regarding the grant of a right of way (where details of consideration and contractual obligations have been agreed) but no actual contract has been entered into, will the seller be obliged to grant the right of way and could the buyer seek an order for specific performance against the seller?

A legal easement is one which is created for an interest equivalent to a fee simple absolute in possession or a lease for a term of years absolute. It...

22nd Jan

Q&As

Do third parties such as a postman have an implied licence to cross land and would this extend to a third parties land?

A bare licence is the simplest type of licence. It is the giving of personal permission by the landowner for the licensee to enter and remain on the...

22nd Jan

Q&As

Is it necessary, when entering into any covenants relating to property, for those covenants to be granted by deed or can such covenants be validly granted pursuant to a contract entered into by the parties under hand?

Covenants relating to propertyA covenant is an agreement between parties that one or some of them is bound to do or not to do a specified thing. For...

Produced in partnership with Alex Campbell of Arden Chambers 22nd Jan

Q&As

An individual has a valid easement created by deed but the plan attached to the deed showing the location of the tank is incorrect. Does the disparity between the plan attached to the easement and the actual extent of the easement invalidate the easement?

In answering this Q&A, it has been assumed that the individual has a valid easement created by deed but the plan attached to the deed showing the...

22nd Jan

Q&As

An individual establishes a right of way by prescription and manages to register it at HM Land Registry. However, the right of way passes over some unregistered land, the ownership of which is unknown (although it appears to be part of a neighbour’s garden). Bearing in mind that it is not clear who owns the unregistered land, how should the easement be protected in relation to that land? Would it be acceptable to register a class D(iii) land charge against the name of the neighbouring owner?

Legal, as opposed to equitable, easements are not registrable under the Land Charges Act 1972 and a purchaser of a legal estate in unregistered land...

22nd Jan

Q&As

Registered land is subject to unascertainable restrictive covenants in favour of a water company imposed at the time of a previous sale (the owner does not have a copy of the deed nor is a copy filed at the HM Land Registry). The title provides that the ‘grantor covenants with the Authority to the intent and so as to bind the said strip of land and each and every part thereof in to whosoever hands' the same may come in to and in order to benefit and protect the authorities ‘undertaking or any part thereof…[including]…the said works and the easement granted’. Is this binding on a purchaser and how is any breach remedied?

A restrictive covenant is, in effect, a promise that the landowner will not do something in respect of their land. There are numerous types of...

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

Q&As

Is there any case law or commentary which considers the scope and meaning of 'for domestic and light agricultural purposes' in the context of the use of a right of way?

In the case of an express grant of a right of way the extent of the right granted depends on the express terms of the grant. The words used in a grant...

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

Q&As

Does a freehold restrictive covenant providing for use as a private dwelling house preclude the use of the house for multiple occupancy under assured shorthold tenancies?

This Q&A considers the general approach to covenants requiring use as a private house, as the interpretation will clearly depend on the exact wording...

22nd Jan

Q&As