Land

Question 1

What are Easements?

Answer 1

DADS
D - Dominant and Servient Tenement
A - Accommodates Land
D - Diversity of Occupation (owners/occupiers of D and S cannot be the same)
S - Subject Matter must be capable of being an easement (certain, not require expenditure by S, not extensive, usually cannot create new negative easements exception for light in certain circumstances)

Question 2

How are Easements created?

Answer 2

Every Naughty Cat Wants Some Privacy
E - Express
N - Necessity (must be there is no other way for carrying out of right)
C - Common Intention (includes impliedly where land is known to be used for specific purpose, think of restaurant case (Wong))
W - Wheeldon v Burrows
S - Section 62 LPA
P - Prescription

Question 3

What are the rules of Wheeldon v Burrows?

Answer 3

Wheeldons CAN rule - on division of land where ‘quasi-easement’ already exists
C - Continuous
A - Apparent
N - Necessary for reasonable enjoyment (not the same as necessity)

Question 4

What are the rules of S62 LPA?

Answer 4

S62 makes rights NEW - rights that were enjoyed at time of legal conveyance are considered to be implied into the conveyance - must either be continuous and apparent OR diversity of occupation
N - Necessary for reasonable enjoyment
E - Enjoyed previously
W - Worded conveyance (Deed)

Question 5

When are easements considered legal versus equitable?

Answer 5

• Created by Statute, deed or prescription and held on terms equivalent to freehold/leasehold, including implied
• Unreg Land: run with the land and binding on all purchasers regardless of notice
• Reg Land: date of first reg = ‘overriding interest’ but express grant following registration MUST be protected by notice on the S title
  *Equitable = formalities not followed; only protected if registered

Question 6

How can the burden of covenant run with land?

Answer 6

PINT of equity - remember must be RESTRICTIVE - Tulk v Moxhay
P - Proximity - D v S land but at time of creation, seller must retain D
I - Intention to pass to successors (can be implied via s79 LPA)
N - Notice (can’t bind S land if they didn’t know/agree)
T - Touch and Concern the land

Question 7

Can a positive covenant be enforced against successors in title?

Answer 7

Indemnity Contract
Creation of lease instead of selling freehold
Halsall v Brizzell - mutual benefit and burden, if want the benefit, implied that you agree to the its burden (e.g. use of track but contribute to maintenance)

Question 8

How can benefit of covenant pass at law?

Answer 8

• Annexation: TILL; Touch and Concern land, Intention for it run (express or implied by s78 LPA), Legal estate in benefited land of covenantee, Legal title is passed to buyer
  *Assignment: expressly at time of transfer in writing with notice to burdened

Question 9

How can benefit of covenant pass in equity?

Answer 9

• Annexation: same as common law
  *Assignment
• Building Schemes - estate divided with the same restrictions applied too all the different parts and when brought known that would be enforceable by each separate buyer; In essence, this relies on the “common intention” behind the building scheme to generate a shared set of rules