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Flashcards in Incorporeal Interests Deck (32)
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1
Q

Types of Incorporeal interests:

A

Easements e.g. a right of way. Can bind third parties (i.e. subsequent owners)

Profits a prendre i.e. a right to enter land and take something from it, e.g. minerals, timber, crops. Can bind third parties (i.e. subsequent owners)

Covenants e.g. a right to prevent a neighbour from operating a pig farm. After Tulk v. Moxhay may bind third parties (i.e. subsequent owners) if they had notice

Licenses i.e. a right to do something on someone’s land that would otherwise constitute trespass. Generally cannot bind a third party (i.e. subsequent owner) but change may be occurring similar to that in Tulk v. Moxhay for covenants

2
Q

What is an Incorporeal Interest?

A

Incorporeal interests in real property are those that cannot be possessed physically, since they consist of rights of a particular user, or the right to enforce an agreement concerning use.

3
Q

Negative Easements

A

Negative easements – do not confer a right to enter onto the servient tenement, but restrict the owner of the servient tenement in his/her use of it in a way which benefits the dominant tenement. A right to prevent your neighbor from doing something on his or her own land (very limited)

i) E.g. the servient tenement owner agrees to refrain from building structures that would interrupt the light or air from reaching the dominant tenement
3) Negative easements are similar to restrictive covenants, but there are differences:
a) Negative easements are more restricted in what subject matter they can cover, whereas restrictive covenants can cover a broader range of things (including new things) since has other safeguards (Phipps v. Pears)
b) Negative easements limited to matters that can be the subject matter of a grant, whereas restrictive covenants can be made simply by agreement
c) Negative easements can be legal and equitable, whereas restrictive covenants can only by equitable
d) Negative easements bind third parties even without notice, whereas restrictive covenants cannot bind without such notice
e) Negative easements are subject to prescription, but not with restrictive covenants which must be by agreement and requires notice (prescription = after some period of peaceable, uninterrupted, non-secret use an easement can be created, such as right of support for buildings or light, although note presecription doesn’t apply in land title jurisdictions)
f) Easements are created by a grant, whereas covenants are made by an agreement under seal

4
Q

Positive Easements

A

Positive easements – gives the owner of the land benefited (dominant tenement) the right to enter the land burdened (servient tenement) for some purpose

i) E.g. a right of way to pass over another’s land
ii) I.e. a right to use the land of another in a particular way, but that is short of possession and that does not include the taking anything away (would be profit a prendre)

5
Q

What is an Easement

A

Easements are registered as a charge on the land, and are generally enforceable against 3rd parties i.e. considered proprietary at law, running with the land
Two types. (positive, negative)

6
Q

Two things to distinguish easements from:

A

natural rights (i.e. riparian, support, accretion perhaps) which come as part of the land itself, and therefore corporal hereditaments

public rights such as public rights of way (i.e. paths that everyone can use) across private land. Easements are between a dominant and servient tenement – they can’t be used by anyone

7
Q

Restrictive covenant (negative)

A

can allow you to get around the restrictions of negative easements. (wind, sun, weather, view etc)

Not going to get v far with a negative easement at CL, better to go to equity with a restrictive covenant and all the conditions it requires

Requires dom touch and concerned, registration of negative to run, privity of contract and or estate. Requires same interest held and common intent to run with land. Positives cannot pass burden (Parkinson) unless takes benefit (halsall), negatives can pass burden at equity only with notice and registration as well as common intent and dom and serv. Must touch and concern land.

8
Q

Phipps v Pears (1965, QBCA)

A

Cannot get a negative easement for (but note these situations can be covered by restrictive covenants, which have safeguards, namely that notice must be given to third party and prescription does not apply):

(1) Obstruction of view
(2) Receive wind in an undefined channel (however, can get a negative easement for air flow in a defined channel, such as a ventilation shaft to a cellar)
(3) Sun (not in a “shaft”), shade
(4) Protection from weather (as in this case)

While courts have been willing to apply positive easements to new technology and expand the allowable categories, they have been very cautious when it comes to negative easements, and it is unlikely that they will expand the categories since they hamper titles and development, limit neighbours in their use of land, can bind 3rd parties automatically, can appear by prescription (although prescription has gone in B.C.), etc

For policy reasons there is no easement by which a dominant tenement can be protected from the weather. If such easement were to be permitted, it would unduly restrict a neighbour from the use of his land. The only way for an owner to protect himself from the weather is to get a restrictive covenant from his neighbour, which would be binding in contract and would be enforceable against third parties (subsequent owners) provided there was notice.

9
Q

Re Ellenborough (1956, CA)

A

Requirements for an easement:

1) dominant and servient tenants
2) Must objectively benefit dominant tenement (question of fact- must be proximate, connected with normal enjoyment of land itself, increase in value is considered but not determinative)
3) At CL dominant and servient owners must be different ( abolished here by s.18(5) & 18(7) of the Property Law Act)
4) Must be proper subject matter to form an easement grant ( sufficiently defined and certain - not too wide or vague, consistent with right of possession of servient tenement, must possess utility or benefit (kinda overruled by this case but could also say walking is the utility) )
5) Parties need ability to act as giver and receiver of the grant
6) Must be an intent to run with the land and bind future parties.

As long as sufficiently precise and is not interfering with possession of owner, easement now can be just for recreation.

10
Q

Effect of Registering covenants

A

Today (in order to bind future owners) must be registered as a charge on servient land and noted on the dominant land (but just because registrar accepted them as covs doesn’t mean they are valid, that’s up to the court). Although recall s.29 of the Land Titles Act concerning unregistered interests

11
Q

B.C. Land Title Act

s218

A

s. 218(1) – A person may create an easement without a dominant tenement, to be known as a statutory right of way, for any purpose necessary for the operation and maintenance of the grantees undertaking. The grantees may be the Crown, a Crown corporation, municipality, public utility, pulp/timber corporation, etc.
ii) s.218(2) the rule requiring an easement to have both a dominant and servient tenement is abrogated as far as subsection (1) requires

12
Q

B.C. Property Law Act

s18

A

(overturns common law requirement that owners of the dominant and servient tenements be different persons):

s. 18(5) – the owner in fee simple (or owner of a registered lease or sublease), may grant to himself an easement or a restrictive covenant over land that he owns for the benefit of other land that he owns (registered). This grant must be consistent with the interests held by him as grantor and grantee at the time of the grant.
ii) s.18(7) – common ownership of the dominant and servient tenements does not extinguish an easement; in other words they no longer have to be two separate owners of different lands.

13
Q

Incorporeal hereditaments

A

are proprietary i.e. they run with the land.

Covenants are not really incorporeal hereditaments – more akin to contracts

14
Q

Covenants

A

If there is privity of contract it is binding i.e. if the parties who originally made the covenant are involved, the covenant is enforced as a contract.

If no privity of contract but there is privity of estate benefit of covenant is enforceable between new parties as long as the contractual terms “touch and concern” the land
If neither privity of contract nor privity of estate, there are differences between the common law and Equity

15
Q

Difference between covenants at CL and Equity?

A

At equity:

i) Includes benefits running with the land
ii) After Tulk v. Moxhay, burden can also run with the land i.e. a restrictive covenant
iii) Thus needs both a dominant and servient tenement
iv) Notice required for successive owners to be bound (Tulk v. Moxhay) and also registration (s.29 PLA, s221 LTA)
v) Need an intent by original parties that it should run with the land

Common Law covenants: Only the benefit runs with the dominant tenement/ can be passed to successors. No burden could run. If the burden cannot shift anywhere, was there a need for a servient tenement? No. Benefit runs with the dominant tenement but it can only be enforced by the person who originally assumed the burden and not their successors. The passing of a burden is purely in equity and purely under the restrictive/negative covenant. which must have notice.

16
Q

Smith and Snipes Hall Farm Ld. v River Douglas Catchment Board (1949,KB)

A

CL Covenant rules:
- only benefit can run with dominant tenement (only original is bound to burden)
- Needs a dominant tenement to touch and concern
- must be intent of parties to run with the land
- no need for servient tenant since burden doesnt run
- doesnt need to be connected in any way to covenantors land
- dominant land has to be benefited
- no notice required for benefit to run with land
- must expressly identify dominant land
by evidence or deed
- The covenantee (holder of dominant tenement) at the time of making the contract had to have legal interest in the land benefiting, and the assignee of the covenantee who seeks to enforce the covenant has to have the same legal estate as the original owner E.g. if original covenantee held in fee simple, but subsequent holder had leasehold, could not enforce benefit

17
Q

Austerberry v Corporation of Oldham (1885, ChCA)

A

CL burden of a covenant does not run with freehold land so as to bind the successors in title – only the benefit can pass. In this case obligation to pay is a burden so cannot pass to successors
At common law, for a covenant to run with the land, it must “touch and concern” the land / it must benefit P’s land

Positive burden so no obligation

18
Q

Halsall and Others v Brizell and Another (1957)

A

CL
A person cannot take the benefit under a deed without subscribing to the burden. (have to meet obligation if you take the benefit) - a general principle on the obligations of deeds/wills.
Note you dont have to take the gift, dont have to take beenfit ( so dont have to take burden)

19
Q

Parkinson v Reid (1966, SCC)

A

Added to the rule in Halsall that if you no longer need the benefit, your use of the benefit in the past doesn’t imply you are bound by the burden anymore. So only bound by burden as long as you take the benefit.

20
Q

Covenants in equity

A

will bind burden if negative, benefits dominant tenement, and notice, intent, registration

In Equity we see recognition of agreements between private parties becoming entirely proprietary and so running with the land and binding subsequent owners, and so have the same result with restrictive covenants as with negative easements.

21
Q

Tulk v Moxhay (1848)

A

Equitable covenants

Burden, will be enforced in equity against all subsequent purchasers with notice of covenant, independently of the question of whether or not the covenant runs with the land at law,

Court seemed disinterested in whether there was dominant or servient tenements, and in whether it was a positive or negative covenant. Court was only concerned with notice, and with such notice, the subsequent (3rd party) buyer is treated equal to the vendor (enormously broad doctrine)
Breakthrough case allowing a burden/enforcement to move to subsequent 3rd parties by Equity, but didn’t discuss doctrine of running with land nor did it set out analysis or principles (court in LCC v. Allen below tries to clear up this area of law)

22
Q

London County Council v Allen (1914, KB)

A

Equitable covenants -

There is an equitable proprietary interest in which the burden from a covenant runs with the land and so binds successive 3rd party title holders if:

(1) The enforcers of the covenant have a dominant tenement that the burden was made to benefit/accommodate (i.e. touches and concerns the dominant tenement) – so a dominant tenement is now required i.e. similar now to a negative easement, although negative easements are still more restricted due to prescription (recall Phipps v. Pears)
(2) There must be a common intention that the burden shall run with both lands
(3) The covenant is negative in substance i.e. restricting only the mode of using the land (so if it involves the expenditure of money it is positive and so will not bind), and
(4) The successive title holders of the servient land had notice (which overcomes effect of legal estate)

23
Q

Who can escape burden in equitable restrictive covenant?

A

A successive legal estate holder, bona fida purchaser for value without notice

24
Q

Key element distinguishing restrictive covenant from easement?

A

NOTICE
A notice though essential is not sufficient.
At CL burden does not pass, but at equity a burden will pass provided that it is negative and provided that there is a dominant tenement that is touched and concerned. (and common intent, must register) Ex in austerberry case

25
Q

Property Law Act 1996

S18

A

S18 (5)An owner in fee simple or an owner of a registered lease or sublease may grant to himself or herself an easement, a restrictive covenant, or a party wall agreement as defined in section 223.1 of the Land Title Act over land that he or she owns for the benefit of other land that he or she owns in fee simple, or of which he or she is the owner of a registered lease or sublease, but a grant under this subsection must be consistent with the interests held by him or her as grantor and grantee at the time of the grant.

(6) A corporation that owns land in fee simple and is a member of the class of persons named in section 218 of the Land Title Act, may grant or reserve a statutory right of way over the land to itself.
(7) Common ownership and possession of the dominant and servient tenements does not extinguish an easement.
(8) Common ownership and possession of the burdened and the benefited land does not extinguish a restrictive covenant.

26
Q

Land Title Act 1996

S29

A

effect of notice of unregistered interest. (interests must be registered and if they are not then prima facie not binding, but if you have notice of an unregistered interest in circumstances that fall within s29 then you are bound in on that basis even if the interest is unregistered)

27
Q

Land Title Act 1996 s 221

A

Requirements of registrable restrictive covenant:
S221 (1)The registrar must not register a restrictive covenant unless
(a)the obligation that the covenant purports to create is, in the registrar’s opinion, negative or restrictive,
(b)the land to which the benefit of the covenant is annexed and the land subject to the burden of the covenant are both satisfactorily described in the instrument creating the covenant, and
(c)the title to the land affected is registered under this Act.
(2)The registration of a restrictive covenant is not a determination by the registrar of its essential nature or enforceability.

Ie you must go to case law to see if it is valid

28
Q

Types of Licenses

A

1) Bare (mere) License
2) Contractual License
3) License coupled with an interest in land
(hounslow- from winter garden dicta and from errington)

29
Q

License

A

Term in relation to land similar to consent. Consent to enter upon land. Not an interest

To determine if a license or a leasehold, look at intent of parties.

30
Q

Winter Garden Case

A

In Winter Garden, court said now that there has been fusion of law and equity, the power of equity to grant an injunction to restrain breach of contract is exercisable in any court. Therefore, need to re-think.
Now, first step is to assess whether a contract and whether it is is revocable or not

License to use a theatre for plays – case turned on contractual issue of whether the licensor could revoke the contract (English H.L. said yes, could be revoked). But in dicta said that if the license had been granted pursuant to a contract, need to first interpret the contract and ask if it gives the power to be revoked (if so, then so too can the license). But if contract irrevocable and tied up with it is a license, then the license is irrevocable as we

31
Q

Hounslow London Borough Council v Twickenham Garden Developments Ltd (1971)

A

At first CL could only award damages but Judicature Acts 1873/75 made it so they can now award equitable remedies too.

Examines Bare license traditional CL view:
- Wood case and Thompson case where they were kicked out despite having contract to be there

Examines License coupled with interest
- Hurst case (movie theatre ticket), Vaughan case. Hounslow is critical of creating random interests in land to keep from breaking contracts - “torture the word interest”

SO created contractual license, inspired by dicta of Winter Garden case.

Equitable remedies can be used if:
(a) If the licensor is threatening to revoke, equity would grant an injunction stopping them from revoking,
(b) If the revocation has been declared by licensor but not yet carried out, the carrying out can be enjoined by injunction,
(c) If revocation already carried out, did not say whether could get an order of specific-performance to get the license back (generally Equity more comfortable ordering injunctions to stop revocation than ordering positive action as would be required here), If you apply force to remove, can be damages for assault
(d) If licensor asks the court to help remove a licensee, if contract is irrevocable Equity won’t help i.e. Equity won’t aid in the breach of a contract. Note this conflicts with Thompson v. Park above, but that case was distinguished since it involved forcible and riotous re-entry, and Equity can be used to stop such violence
Fifth (pg 301) license has been acted upon and person is in a position that they cannot go back on what they have done, so kind of an estoppel that one cant revoke if one has by acquiescence led party to believe it was not going to be revoked until you enable party to get back into position they were in (howell said this one)

32
Q

Errington v Errington and Woods (1952, KB)

**Note this predates hounslow

A

3rd party successor bound by license unless bona fide purchaser for value without notice

There is no dominant tenement here (license is just a personal agreement) but this case makes it possible to bind successors. Thus has effectively made a license a proprietary interest in land, much as Tulk v. Moxhay did with covenants.
“Contractual licences have a force of their own and cannot be revoked in breach of contract (i.e. if revoking the license leads to a breach). Neither the licensor nor anyone who claims through them (i.e. successor) can disregard the contract & license except a bona fide purchaser for value without notice.”