Overview
In property law, examining titles demands careful attention and a solid understanding of legal concepts. Easements and restrictive covenants are significant elements that affect property rights, value, and development potential. For those preparing for the SQE1 FLK2 exam, understanding these concepts is necessary for effective property transactions and dispute resolution. This guide explores easements and restrictive covenants, discussing their legal bases, practical effects, and the analytical skills needed to tackle their challenges in exams and real-life scenarios.
Easements
Easements allow rights to use someone else's property, benefiting a dominant property over a servient one. They are governed by a mix of statutory and common law.
Types of Easements
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Express Easements
- Clearly stated in legal documents
- Must comply with the Law of Property Act 1925, s.1(2)
- Key elements: capacity, intention, clear description
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Implied Easements
- Established by law without explicit documentation
- Includes:
- Necessity
- Implied under s.62 Law of Property Act 1925
- Wheeldon v Burrows rule (1879)
-
Prescriptive Easements
- Acquired through long-term use
- Requirements:
- 20 years' continuous use
- Use 'as of right' (without force, secrecy, or permission)
- Must qualify legally as an easement
Legal Aspects of Easements
- Must benefit the dominant property
- Owned by separate parties for dominant and servient properties
- Must be capable of legal recognition
- Requires clear definition
Creation and Termination of Easements
Creation:
- Through express agreement or reservation
- Implied by necessity or common intention
- Established by long-term use
- Via statutory regulations
Termination:
- Merging of property ownership
- Official release
- Abandonment (requires intent)
- Statutory authority (e.g., Law of Property Act 1925, s.84)
Restrictive Covenants: Principles and Practice
Restrictive covenants limit land use to benefit surrounding properties. They are vital in property law but involve complex enforceability rules.
Types of Restrictive Covenants
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Negative Covenants
- Forbid specific actions (e.g., commercial use in residential areas)
- Preserve locale character and appearance
-
Positive Covenants
- Require active duties (e.g., upkeep of shared spaces)
- Important for community upkeep
Formation and Validity
- Must be negative in form
- Must affect the land itself
- Intended to bind future owners
- Benefit should be attached to the land
Enforceability
-
The Rule in Tulk v Moxhay (1848)
- Allows enforcement against subsequent owners
- Criteria:
- Covenant must be negative
- Benefit must affect the retained land
- The new owner must be aware
-
Legal Provisions
- Land Charges Act 1972, s.2(5) for unregistered land
- Land Registration Act 2002, s.32 for registered land
-
Enforcement Rights
- Original parties
- Successors (with benefit attached to the land)
Modification and Removal
- Agreement between parties
- Under s.84 Law of Property Act 1925 (Upper Tribunal authority)
- Based on:
- Outdated nature
- Hindering reasonable use without significant benefit
- Consent or tolerance
Title Investigation: Practical Tips
When examining titles regarding easements and restrictive covenants, a methodical strategy is essential for identifying these interests.
Title Investigation Steps
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Document Examination
- Scrutinize title deeds, leases, and registry records
- Find express easements or reserved limitations
- Locate registered restrictive covenants
-
Property Inspection
- Check for visible easements (e.g., pathways)
- Observe potential covenant breaches
-
Inquiries and Searches
- Perform official Land Registry searches
- Question sellers about known easements or covenants
- Include local authority searches for planning restrictions
-
Evaluating Validity
- For easements: Confirm legal criteria
- For covenants: Check binding status under Tulk v Moxhay
-
Client Advice
- Explain discovered easements or covenants
- Discuss modification or removal options if problematic
Case Studies and Applications
Case Study 1: Prescriptive Easement
In Smith v Jones (2021), the court addressed a claim for a prescriptive right of way. The claimant had used a path across a neighbor's property for over 30 years. The court assessed:
- Whether the use was rightful
- If it was continuous over the necessary time
- If it qualified as an easement
The claimant succeeded, securing a prescriptive easement. This highlights the need for thorough investigation to uncover potential unregistered interests.
Case Study 2: Covenant Modification
In Re Youngman's Application (2019), the Upper Tribunal reviewed a request to modify a covenant limiting construction to one dwelling. The applicant wanted to build two more houses. Considerations included:
- Whether the covenant offered valuable practical benefits
- If the modification would harm those entitled to the benefit
The Tribunal approved the modification, allowing additional houses under design constraints. This exemplifies the potential for covenant change under s.84 LPA 1925.
Example: Development Dilemma
A developer buys land for a new project but finds an easement for neighboring farm access and a covenant restricting building heights. The developer must:
- Verify the validity and enforceability of the easement and covenant
- Consider design adjustments to respect the easement
- Explore negotiations or modifications to the covenant
- Analyze project viability and legal risks
This scenario shows the challenges easements and restrictive covenants present in development and the need for comprehensive legal strategy.
Conclusion
Understanding easements and restrictive covenants is fundamental for success in the SQE1 FLK2 exam and further legal practice. These concepts are a significant part of property law, impacting conveyancing and dispute resolution. Being skilled at identifying and analyzing these interests is a hallmark of adept property lawyers. Candidates must learn the legal rules for their formation, enforcement, and adjustment, while honing practical skills in title examination and client consultation.
Key points to remember:
- Know different easement types and creation methods
- Understand legal standards for enforceable covenants
- Appreciate detailed title examination's role in transactions
- Be familiar with ways to modify or discharge covenants