easements

Question 1

What is an easement?

Answer 1

An easement is a proprietary right to use and enjoy land that belongs to someone else. It can involve rights of way, drainage, storage, and parking on neighboring land.

Question 1

What is an implied legal easement?

Answer 1

An implied legal easement is an easement that is implied into a transfer deed or a legal lease. It takes its status from the status of the document it is implied into. All easements implied by the LPA 1925, s 62 are implied legal easements.

Question 2

What are express easements and how are they created?

Answer 2

Express easements are created either by way of grant or reservation through an explicit legal process. To be an express legal easement, the right must be granted or reserved forever or for a set period of time. It must also be created by a deed and substantively registered.

Question 3

What are some questions to ask when determining if a right is an easement?

Answer 3

Some useful questions to ask are: Does the right benefit any owner of the land? Does it cease to be of use once the dominant owner has parted with the land? Does the right make the dominant land a better or more convenient property? Does the right add value or amenity to the dominant land? Problems arise when the right appears to benefit a business as well as the land.

Question 4

What is the rule in Wheeldon v Burrows?

Answer 4

The rule in Wheeldon v Burrows is a method of implied acquisition where an easement has not been acquired expressly. It implies the grant of an easement (where one has not been expressly granted) but not the reservation of an easement. The requirements for the rule to apply include the right being claimed being continuous and apparent, necessary for the reasonable enjoyment of the dominant land, and in use by the common owner at the date of the transfer or lease.

Question 5

What are the different parties involved in an easement?

Answer 5

In an easement, the person who receives the benefit is the grantee, and their land is the dominant tenement. The person who grants the easement is the grantor, and their land is the servient tenement.

Question 6

How does the duration of an implied legal easement differ when it is implied into a lease versus a transfer deed?

Answer 6

If an implied legal easement is implied into a lease, it will come to an end when the lease comes to an end. However, if it is implied into a transfer deed, then the easement will last along with the freehold.

Question 7

What are the different types of implied easements?

Answer 7

There are two types of implied easements: implied legal easements and implied equitable easements. Implied legal easements are implied into transfer deeds or legal leases, while implied equitable easements are implied into contracts or equitable leases.

Question 8

What happens if a purported legal easement fails to meet the requirements for an express easement?

Answer 8

If a purported legal easement fails to meet the requirements for an express easement, it may still be recognized as an equitable easement if it complies with the necessary criteria outlined in LP(MP)A 1989, s 2. Otherwise, it can only be an equitable easement if it does not meet the definition of a legal easement in LPA 1925, s 1(2)(a).

Question 9

How are easements created?

Answer 9

Easements can be created by express agreement in a document that complies with relevant statutory formalities. They can also be created impliedly without writing, or by prescription where there is uninterrupted user for at least 20 years without force, secrecy, or permission.

Question 10

What is the difference between an implied legal easement and an implied equitable easement in terms of enforceability?

Answer 10

Implied legal easements are binding in registered land as overriding interests and in unregistered land because legal interests bind the world. On the other hand, implied equitable easements must be protected to be enforceable, either by notice in registered land or by a Class D(iii) Land Charge in unregistered land.

Question 11

What are the formalities for creating express legal easements?

Answer 11

To be an express legal easement, the right must be granted or reserved forever or for a set period of time: LPA 1925, s 1(2)(a)

It must be created by a deed: LPA 1925, s 52 and LP(MP)A 1989, s .1 To be a deed, a document must comply with the formalities in LP(MP)A 1989, s 1:
 Must be clear it is intended to be a deed
 Signed by grantor and witnessed
 Delivered /dated

It must be substantively registered: LRA 2002, s 27(2)(d).

Question 12

What is the purpose of the LPA 1925, s 62?

Answer 12

The purpose of the LPA 1925, s 62 is to imply the grant of an easement when it has not been acquired expressly. It can be used to imply an easement in situations where there has been prior diversity of occupation, or in situations where the right being claimed is continuous and apparent.

Question 13

What is the difference between positive and negative easements?

Answer 13

Positive easements generally enable the holder to enter or use the servient land, while negative easements do not involve entering or using the servient land. Negative easements are rare and are treated with caution by the courts.

Question 14

How can a dominant owner enforce an easement?

Answer 14

To enforce an easement, the dominant owner must have the benefit of the easement and the ability to sue. As between the original parties, a properly created easement is always enforceable by the dominant owner against the servient owner. If the dominant land changes hands, the benefit, which is part of the land, passes with the transfer of the land, enabling the dominant owner to enforce it.

Question 15

Can an easement be implied by necessity? Provide an example.

Answer 15

Yes, an easement can be implied by necessity in cases where the dominant land is landlocked and cannot be accessed without a right of way. For example, if A sells part of their land to B and there is no alternative access route, an easement of necessity may be implied to allow B to access their land.

Question 16

How do easements differ from other rights, such as licenses and restrictive covenants?

Answer 16

Easements confer proprietary rights in land, while licenses confer personal rights that cannot be enforced against a third party. Restrictive covenants primarily restrict what can be done on the servient land, unlike easements that confer a right over the servient land.

Question 17

What is the requirement for the dominant and servient land to be sufficiently proximate to each other?

Answer 17

The dominant and servient land must be sufficiently proximate to each other. Normally, they will be adjoining, but this is not always the case. In Pugh v Savage [1970] 2 QB 373, there was a right of way over one field to get to another, even though the dominant and servient tenements weren’t adjoining. They were close enough for the dominant land to derive a benefit from the right.

Question 18

What are the requirements to be an easement?

Answer 18

o There must be a dominant and servient tenement
o The right must accommodate the dominant tenement. If a right benefits a business, it will benefit the land if the business is connected to the use of the land.
o There must be no common ownership
o The right must lie in grant

Question 19

What are the requirements for the rule in Wheeldon v Burrows to apply?

Answer 19

The requirements for the rule in Wheeldon v Burrows to apply include the right being claimed being continuous and apparent, necessary for the reasonable enjoyment of the dominant land, and in use by the common owner at the date of the transfer or lease. The rule can only operate on a sale or lease of part when there was a common owner and occupier of the whole immediately prior to the transfer or lease.

Question 20

What the requirements for an easement to be equitable?

Answer 20

 Must be made in writing
 Must include all expressly agreed terms
 Must be signed by both parties

o Easements which do not fall within the definition of legal easements in LPA 1925, s 1(2)(a) because they are not granted or reserved for a freehold or leasehold term can only be equitable. These can be described as ‘inherently equitable’ easements.
o This type of equitable easement is much less formally created. The minimum formalities are set out in LPA 1925, s 53(1)(a):
 Must be made in writing
 Must be signed by the grantor

Question 21

What is the significance of grants and reservations in relation to easements?

Answer 21

A grant exists when a landowner sells or leases part of their land to someone else and gives them an easement over the land that has been retained. A reservation exists when a landowner sells or leases part of their land and retains a right over the land sold or leased. Reservations are strictly construed against the person reserving them.

Question 22

What is the upgrade effect of the LPA 1925, s 62?

Answer 22

The upgrade effect of the LPA 1925, s 62 refers to the interpretation that allows the statute to imply a brand-new easement into a document. It operates to upgrade informal rights into full legal easements. This effect has been applied in cases such as Wright v Macadam and P&S Platt v Crouch.

Question 23

How are easements distinguished from quasi-easements and public rights?

Answer 23

Quasi-easements refer to situations where landowners use paths on their own land and are not enjoying easements. Public rights, like rights of way, can be similar in scope to easements but are exercised by the general public rather than an individual or particular body.

Question 24

What are the requirements for a right to be considered an easement in terms of grant and description?

Answer 24

The right must lie in grant, meaning it must be capable of forming the subject-matter of a deed. The right must also be capable of reasonably exact description, where the nature and extent of the right are clear enough for the court to know exactly what is to be enforced. Additionally, the right must be judicially recognized and within the general nature of rights traditionally recognized as easements.

Question 25

What is the process of implying an easement by common intention?

Answer 25

An easement may be implied by common intention when land is sold or leased for a specific purpose, and the easement is essential to achieve that purpose. The specific purpose must be known to both parties, and there must be a mutual intention for the property to be used in a definite and particular manner.

Question 26

What are the requirements for an implied legal easement to be enforceable against a new servient owner in registered land?

Answer 26

In registered land, an implied legal easement will be an overriding interest if it meets certain conditions. These conditions include the easement being within the actual knowledge of the new owner, being obvious on a reasonably careful inspection of the servient land, or having been exercised within a year before the transfer of the servient land.

Question 27

What is the difference between an easement and a profit a prendre?

Answer 27

An easement does not confer the right to take anything from the land, while a profit a prendre does. A profit a prendre grants the right to take produce, animals, fish, or minerals from the land.

Question 28

What are the requirements for the upgrade effect of the LPA 1925, s 62 to apply?

Answer 28

The requirements for the upgrade effect of the LPA 1925, s 62 to apply include prior diversity of occupation of the dominant and servient land, an informal permission or license granted to the occupier of the dominant tenement to use the servient land, and a conveyance (transfer by deed or legal lease) of the dominant tenement.

Question 29

What is the burden of proof when relying on an implied easement by common intention?

Answer 29

When relying on an implied easement by common intention, the burden of proof is heavy. The seller or landlord must show that the specific easement was mutually intended, and it is not enough to show that the right was openly exercised prior to the first transaction.

Question 30

What are some examples of rights that have been judicially recognized as easements?

Answer 30

Some examples of rights that have been judicially recognized as easements include the right of way, the right of drainage and other rights through pipelines, the right of support, the right to use sporting and leisure facilities, and the right to use land for recreational purposes. Even if a right has not previously been recognized as an easement, it can still be capable of being one as the list of easements is not exhaustive.

Question 31

What is the difference between implied legal easements and implied equitable easements?

Answer 31

Implied legal easements are implied into transfer deeds or legal leases, while implied equitable easements are implied into contracts or equitable leases. The status of an implied legal easement takes its status from the document it is implied into, while an implied equitable easement will come to an end when the lease comes to an end if it is implied into a lease, or it will last along with the freehold if it is implied into a transfer deed.

Question 32

How can an easement be created impliedly?

Answer 32

An easement may be deemed to have been created impliedly by one of several recognized methods. For example, an easement can be implied into a document or created by prescription through uninterrupted use for at least 20 years.

Question 33

What is the status of an easement implied by common intention?

Answer 33

An easement implied by common intention can be either legal or equitable, depending on the status of the document it is implied into. If it is implied into a transfer deed or a legal lease, it is considered a legal easement. If it is implied into a contract, it is an equitable easement.

Question 34

What disqualifying factors can prevent a right from being considered an easement?

Answer 34

If any one of the following factors is present, the right cannot be an easement and can only be a personal license: if the use amounts to exclusive possession, if the use is exercised with permission, if the use requires additional payment by the servient landowner, or if the servient owner is left with no reasonable use or possession and control of the servient land.

Question 35

What is the significance of prior diversity of occupation in the application of the LPA 1925, s 62?

Answer 35

Prior diversity of occupation is a requirement for the application of the LPA 1925, s 62 in situations where land has been divided. It is not necessary when the right being claimed is continuous and apparent. The recent cases of P&S Platt v Crouch and Wood v Waddington have held that prior diversity of occupation is not necessary when the right is continuous and apparent.

Question 36

What is the significance of continuous user in acquiring an easement by prescription?

Answer 36

For an easement to be acquired by prescription, it must be exercised continuously for at least 20 years without interruption. Any use for 1 year or more would be considered an interruption.

Question 37

What happens if a right requires the servient tenement owner to spend extra money?

Answer 37

If the exercise of a right by the dominant owner requires the servient tenement owner to spend extra money, the right is disqualified from being an easement as a positive obligation is inconsistent with the concept of an easement. Additionally, the servient tenement owner is not obliged to carry out repairs or maintenance to enable the dominant owner to enjoy an easement. Instead, the dominant owner must allow the servient owner onto the servient land to carry out any repairs at the dominant owner’s expense.

Question 38

What is the requirement for the dominant owner to exercise the right as of right?

Answer 38

Express permission will almost inevitably be given when a right is first used. However, after the initial grant, the dominant owner must exercise the benefit as of right. Enjoying the benefit as of right is the essence of an easement. If the dominant owner asks for permission every time the right is exercised, it cannot be an easement.

Question 39

What is the purpose of excluding the operation of the rule in Wheeldon v Burrows and the LPA 1925, s 62 in property deals?

Answer 39

The operation of the rule in Wheeldon v Burrows and the LPA 1925, s 62 is commonly excluded from property deals to avoid any unintended consequences. This is because these rules can lead to the creation of easements without the parties involved having given due regard to them.

Question 40

What is an example of a case where a right was not considered an easement due to the lack of enjoyment as of right?

Answer 40

In Green v Ashco Horticultural Ltd [1966] 1 WLR 889, the claimant claimed a right to park a van on the defendant’s land. However, the defendant was only exercising the right to park insofar as the servient owner permitted. By moving the van on request, the defendant was acknowledging that they did not park on the land as of right but by permission.

Question 41

What is the significance of continuous and apparent rights in the rule in Wheeldon v Burrows?

Answer 41

In the rule in Wheeldon v Burrows, the right being claimed must be continuous and apparent. To be continuous, the right need not have been enjoyed constantly or incessantly, but there must be some degree of permanence. To be apparent, there must be some clue as to the existence of the right from a careful inspection of the land. The right must also be necessary for the reasonable use of the land.

Question 42

What are the remedies available for the enforcement of an easement?

Answer 42

The remedies available for the enforcement of an easement include a prohibitory injunction to prevent interference with the enjoyment of the easement, damages in lieu of or in addition to an injunction, and a mandatory injunction to remove obstruction.

Question 43

What is the difference between a grant and a reservation in relation to easements?

Answer 43

A grant exists when a landowner sells or leases part of their land and gives an easement over the land that has been retained. A reservation exists when a landowner sells or leases part of their land and retains a right over the land sold or leased. Reservations are strictly construed against the person reserving them.

Question 44

What are the requirements for a right to be considered an easement in terms of additional expenditure and permission?

Answer 44

A right is disqualified from being an easement if the exercise of the right requires the servient tenement owner to spend extra money or if the dominant owner asks for permission every time the right is exercised. Additionally, the servient owner is not obliged to carry out repairs or maintenance to enable the dominant owner to enjoy an easement.

Question 45

What is the effect of the rule in Wheeldon v Burrows on the sale or lease of part of a property?

Answer 45

The rule in Wheeldon v Burrows can only operate on a sale or lease of part when there was a common owner and occupier of the whole immediately prior to the transfer or lease. As soon as there is a division of ownership and occupation of the land, any quasi-easements that existed at the time of the division can become full easements benefiting the land which has now become the dominant tenement, provided the requirements under this rule are met.

Question 46

What is the difference between implied acquisition and implied reservation of an easement?

Answer 46

Implied acquisition refers to the situation where an easement has been impliedly acquired, while implied reservation refers to the situation where an easement has been impliedly reserved. The rule in Wheeldon v Burrows implies the grant of an easement but not the reservation of an easement.

Question 47

What are the different modes of implied acquisition in relation to easements?

Answer 47

The different modes of implied acquisition in relation to easements include necessity and common intention. In a grant situation, all modes of implied acquisition can be used. In a reservation situation, only necessity and common intention are available as implied modes of acquisition.

Question 48

What are the requirements for an easement to be acquired, either expressly or impliedly?

Answer 48

An easement can be acquired expressly by complying with the necessary formalities, such as being in writing and signed by the grantor. It can also be acquired impliedly based on the circumstances. In both cases, the easement must comply with the definition on duration and be within the general nature of rights traditionally recognized as easements.

Question 49

Under what circumstances can an easement be impliedly granted or reserved by necessity?

Answer 49

An easement can be impliedly granted or reserved by necessity when the land is otherwise incapable of use. This typically applies to situations where the land is landlocked and would be inaccessible without the easement.

Question 50

What is the significance of Wheeldon v Burrows in relation to implied grant of easements?

Answer 50

Wheeldon v Burrows established that an easement can be impliedly granted when the land is divided for the first time, either by transfer or lease. The newly transferred or leased land becomes the dominant land, and certain conditions must be met for the implied grant to apply.

Question 51

What are the two situations in which s62 easement can be implied?

Answer 51

o The LPA 1925, s 62 can be used to imply an easement in two situations:
 a **Wright v Macadam **situation where the land has been divided before the informal permission is given, and the permission becomes an easement when the leased land is re-let or sold; or
 a **P&S Platt v Crouch **situation where the land is divided for the very first time by lease or sale of part, if the right is continuous and apparent.

Question 52

Can s62 be implied in equitable easements?

Answer 52

No, can only be implied in deeds

Question 53

What are the requirements for s62 implied easement?

Answer 53

 Only applies where the right being claimed would have been a grant to the claimant.
 There must have been prior diversity of occupation of the dominant and servient land
 An informal permission or licence must have been granted to the occupier of the dominant tenement to use the servient land in some way. Must have been continuous and apparent/
 There must have been a conveyance (i.e. a transfer by deed or a legal lease) of the dominant tenement.

Question 54

Wheeldon v Burrows requirements?

Answer 54

• there is a right that was exercised by the servient landowner (so the seller or landlord) at the time of the sale / lease;
• the right enhances the land in some way;
• the right has been used reasonably regularly; and
• the right would be discoverable on a reasonably careful inspection of the land.

Question 55

A landowner owns the freehold of a large property. The self-contained basement flat is rented to a tenant under a 3 year lease. In the lease, the tenant is granted a right to use the landowner’s garden shed to store bikes. The tenant’s bikes take up all of the space in the shed. As the bikes are expensive, the tenant secures the shed with a padlock, which the landowner does not have a key for.

Which of the following statements best explains why the right to store is not capable of being an easement?

The right is not capable of being an easement because permission must be sought by the dominant land owner to exercise the right

The right is not capable of being an easement because it does not touch and concern the dominant land

The right is not capable of being an easement because there is no diversity of ownership

The right is not capable of being an easement because the servient land owner is not left with any reasonable use of the shed

The right is not capable of being an easement because the right is negative and the court is not prepared to recognise new negative easements

Answer 55

The right is not capable of being an easement because the servient land owner is not left with any reasonable use of the shed

This is correct. The right is not capable of being an easement because it grants exclusive possession to the dominant land owner. The tenant is using all of the available space in the shed so the landowner cannot make any reasonable use of it (Batchelor v Marlow [2003] 1 WLR 764). In addition, the landowner does not ‘retain possession or control’ of the shed (the test suggested by Moncrieff v Jamieson [2007] UKHL 42) as the tenant locks the shed, which the landowner does not have a key for.
In order for a right to be capable of being an easement it must satisfy the requirements established in Re Ellenborough Park [1955] EWCA Civ. If the right does not satisfy any of these requirements, it is not capable of being an easement and will be merely a personal permission (a licence) rather than a proprietary right in the land, which an easement it. Even if a right satisfies the requirements of an easement laid down in Re Ellenborough Park, the right can be defeated (i.e. will not be an easement) if it requires payment by the servient land owner, grants exclusive possession to the dominant land owner or requires permission from the servient land owner in order to be exercised. If a right is capable of being an easement then you then need to consider if it has been acquired (expressly or impliedly) as an easement on the facts.

Question 56

A freeholder owns the freehold of a large property and garden. 6 years ago the freeholder let the top floor flat to a tenant under a 5 year legal lease. After moving in, the tenant asked the freeholder to use part of the garden to grow vegetables and relax in. The freeholder agreed. Last year, the 5 year lease expired and a new 5 year legal lease was granted on exactly the same terms as the previous one. There was no reference to the right to use the garden.

Which of the below statements best explains whether the tenant has acquired an easement to use the garden?

The tenant has acquired an easement impliedly under s.62 of the Law of Property Act 1925

The tenant has acquired an easement impliedly under the rule in Wheeldon v Burrows (1879)

The tenant has acquired an express legal easement under the new 5 year lease

The tenant has not acquired an easement because this is a reservation and the right to use the garden is not necessary to access the top floor flat

The tenant has not acquired an easement because the top floor flat can be used for residential purposes without use of the garden

Answer 56

The tenant has acquired an easement impliedly under s.62 of the Law of Property Act 1925

This is correct. the tenant has acquired an easement impliedly under s.62 of the Law of Property Act 1925. On the grant of the second 5 year lease, the informal permission to use the garden is upgraded to an easement and implied into this lease. The facts are similar to Wright v Macadam [1949] 2 KB 744, which demonstrates this mode of acquisition.
An easement can be acquired expressly or impliedly. You should consider first if there has been express acquisition – is the easement written down and does it comply with the necessary formalities? If not, consider if the circumstances mean the easement could have been acquired impliedly by one of the recognised modes. Certain modes of implied acquisition only apply if it is a grant, rather than a reservation, situation. It is therefore important that you understand not only the different modes of acquisition, but also the distinction between reservation and grant.

Question 57

A landlord was the registered freehold proprietor of two adjoining plots of land. Fifteen years ago, the landlord made a valid contract with a tenant in which it agreed to grant a 20-year legal lease of the southern plot (commencing on the date of the contract). The contract stipulated that the tenant was to use the southern plot for a specified purpose.

Immediately the contract was made, the landlord and tenant appreciated that the tenant could only use the southern plot for the specified purpose if the tenant was able to park a car on the northern plot.

The landlord, who had retained possession of the northern plot, told the tenant that it could park a car on that plot. The tenant has parked a car on the northern plot for the past 15 years.

Which one of the following statements is a correct description of the tenant’s right to park on the northern plot?

The tenant can park their car by reason of an express legal easement.

The tenant can park their car by reason of an implied equitable easement.

The tenant can park their car by reason of an express equitable easement.

The tenant can park their car by reason of a prescriptive easement.

The tenant can park their car by reason of an implied legal easement.

Answer 57

The tenant can park their car by reason of an implied equitable easement.

This is the correct answer. Where an estate is transferred or granted to a person for a particular purpose, and that purpose can only be realised if the transferee or grantee can exercise an easement over land retained by the transferor or grantor, that easement will be implied by reason of common intention: Wong v Beaumont [1965] and Donovan v Rana [2014] EWCA Civ 99.
Since the tenant can only use the southern plot for the specified purpose if it is able to park on the northern plot, an easement of parking will be implied.
Implied easements derive their legal or equitable status from the transaction into which they are implied. Since the tenant acquired an equitable lease (arising by reason of the specifically enforceable contract to grant a lease: R v Tower Hamlets LBC ex parte Von Goetz [1999] QB 1019), any easements implied into that lease would be equitable.

Question 58

A farmer owns the freehold of a farm. Five years ago the farmer leased out the southern part of the farm to a tenant under a four year legal lease. The farmer retained the northern part of the farm to live in. During the lease, the farmer continued to use the drains which serve the northern part of the farm and run under the southern part of the farm leased to the tenant.

Last year, the four year lease expired. The farmer granted the tenant a new four year legal lease on exactly the same terms as the previous one. There was no reference to the right to use the drains.

Which of the following statements best explains whether the farmer has acquired an easement to use the drains?

The farmer has acquired an easement impliedly under the rule in Wheeldon v Burrows.

The farmer has not acquired an easement.

The farmer has acquired an easement impliedly by common intention.

The farmer has acquired an easement impliedly by necessity.

The farmer has acquired an easement impliedly under s.62 Law of Property Act 1925.

Answer 58

The farmer has not acquired an easement.

This is correct. This is an attempted reservation. There is no mention of the right to use the drains in the lease, so it cannot be an express easement. The only methods of implied acquisition available for reservations are: necessity and common intention. Necessity will not apply - necessity is only applicable to rights of way where there is no other means of access to the land. The courts will only allow an easement of common intention in a reservation situation if there is no other possible interpretation of the facts (Peckham v Ellison; Re Webb’s Lease). Here, the farmer can use its retained land without the drainage right and had two opportunities to reserve this right (in the first and second leases) (Yeung v Patel) so the court is unlikely to imply this reservation.

Question 59

A man and a woman are adjoining land owners. The man has told the woman that it plans to build a large extension at the back of its house. The woman is very concerned that this will block the sun to her garden and make it very dark.

Can the women claim an easement in respect of the man’s land that could stop the extension from being built?

The woman cannot claim an easement of light as the court will not recognise new negative easements

The woman can claim an easement of light which the proposed extension would block

The woman can claim an easement of light because it is a recognised negative easement

The woman cannot claim and easement as there is no such thing as a right to a view

The woman cannot claim an easement of light as there is no defined aperture in a garden

Answer 59

The woman cannot claim an easement of light as there is no defined aperture in a garden

This is correct. A right to light is one of a few recognised negative easements - it is not a ‘new’ negative easement, which the court will not recognise.
However, there is no general right to light. A right to light is an easement that gives a landowner the right to receive light through defined apertures in buildings or on their land. There is not a defined aperture in the woman’s garden to through which the right to light could be claimed on the facts, the women is just trying to claim a general right.

Question 60

What is a reservation?

Answer 60

The land owner creates an easement in favour of their own land when selling to a buyer