Core principles of land law - Proprietary Rights (easements,...

Learning Outcomes

This article explains the core principles of proprietary rights in land—easements, freehold covenants, and mortgages—covering:

• The nature and essential characteristics of easements, covenants, and mortgages as proprietary, rather than merely personal, rights
• The formalities and methods for creating legal and equitable easements, covenants, and mortgages, and distinguishing valid rights from invalid attempts
• The rules governing transmission and enforceability of benefits and burdens, including Tulk v Moxhay, annexation, indemnity chains, and mutual benefit and burden
• Registration, priority, and protection of these rights in registered and unregistered land, including notices, land charges, overriding interests, and overreaching
• Lender powers and borrower protections in mortgage transactions, including possession, sale, foreclosure, the equity of redemption, and duties on enforcement
• Typical remedies for interference or default—such as injunctions, damages, and statutory modification or discharge—and when each is likely to be granted
• Analytical strategies for applying these principles to realistic SQE2-style problem questions, spotting pitfalls, and advising parties on risk management and transactional drafting.

SQE2 Syllabus

For SQE2, you are required to understand the core principles of proprietary rights in land, including easements, covenants, and mortgages, with a focus on the following syllabus points:

• The legal and equitable criteria for recognizing and creating easements, covenants, and mortgages.
• The formalities for valid creation and registration.
• The enforceability of burdens and benefits of covenants and easements against successors.
• Lender and borrower rights and remedies under mortgages, including possession, sale, and foreclosure.
• Practical application of registration, priority, and overreaching to protect parties’ interests.
• Assessing and advising on the appropriate remedy and common exam pitfalls for these rights.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A landowner seeks to grant a right of way to a neighbour "for all purposes forever". What requirements must be met for this to bind successors at law?
2. Which main criteria determine whether a restrictive covenant burdens successors in equity, and can positive covenants do the same?
3. What remedies may a lender exercise following non-payment under a legal mortgage of registered land?
4. In what circumstances will a positive freehold covenant bind a subsequent purchaser of the servient land?

Introduction

Proprietary rights are fundamental to land law and regularly examined in SQE2. Easements, covenants, and mortgages are key rights that bind land and can affect future owners. The assessment covers their creation (legal and equitable), enforceability, transmission of burdens and benefits, and remedies for breach or default. In registered land, many dispositions must be completed by registration to take effect at law; overriding interests may bind despite not being registered. In unregistered land, some equitable rights must be protected by registration as land charges to bind purchasers; otherwise, the doctrine of notice applies.

Key Term: easement
A proprietary right enjoyed by land (the dominant tenement) over neighbouring land (the servient tenement) for a clearly defined purpose, e.g. access, drainage, or light.

Key Term: covenant
A promise relating to land, enforceable in equity, either restricting (restrictive) or requiring (positive) actions concerning land.

Key Term: mortgage
Security interest granted over land, usually by deed, giving the lender proprietary rights until the debt is repaid.

Key Term: mortgagor
The person (borrower) who creates the mortgage by granting rights over their land.

Key Term: mortgagee
The person (lender) with the benefit of the mortgage security.

Key Term: overriding interest
An unregistered interest that binds a purchaser of registered land if it falls within LRA 2002 Schedule 3 (e.g. certain legal easements, actual occupation).

Key Term: overreaching
A process by which beneficial interests under a trust are detached from the land and transferred to the purchase money if paid to at least two trustees or a trust corporation (ss 2, 27 LPA 1925).

Easements

An easement is a property right benefiting one parcel of land and burdening another, such as a right of way. Only valid easements will bind successors in title.

Key Term: dominant tenement
The land benefitting from an easement.

Key Term: servient tenement
The land burdened by an easement.

Essential Requirements

A right is a valid easement only if the classic criteria from Re Ellenborough Park are met:

• There is a dominant and a servient tenement—two distinct pieces of land.
• The right benefits (accommodates) the dominant land itself, not just the current owner’s personal advantage (it must “touch and concern” the land).
• The tenements are owned/occupied by different people (diversity of ownership/occupation).
• The right is capable of forming the subject matter of a grant—sufficiently certain, not amounting to joint possession, and not requiring positive expenditure by the servient owner. Rights that confer exclusive use of the servient land will fail; intensity of use is assessed against whether the servient owner retains reasonable use.

These tests are applied to specific rights such as rights of way, drainage, support, light, parking, and use of amenities. Parking can be a valid easement if it does not deprive the servient owner of reasonable use and is sufficiently defined (e.g. allocated spaces), but a purported “easement” that effectively excludes the servient owner from their land is unlikely to be valid.

Creation of Easements

Easements may be created by:

• Express grant or reservation: By deed (s 52 LPA 1925; LP(MP)A 1989 s 1 on deed formalities), over freehold or leasehold terms. For registered land, an express legal easement is a registrable disposition that must be completed by registration to take effect at law (s 27(2)(d) LRA 2002). In practice, the charges register of the servient title will carry the notice of the easement; the benefit will often be referred to on the property register of the dominant title. In unregistered land, a legal easement created by deed binds successors without additional registration.

• Implied grant or reservation: Only arises on a disposition of part (splitting land). It may be implied:

  • By necessity (essential access where land would otherwise be landlocked).
  • By common intention (e.g. where land is sold to be used for a particular purpose and the easement is necessary to realise that purpose; classic example: ventilation for a restaurant in Wong v Beaumont Property).
  • Under the rule in Wheeldon v Burrows: On a sale of part by a common owner, continuous and apparent quasi-easements used by the seller for the benefit of the part sold, and necessary to the reasonable enjoyment of that part, may convert into easements for the buyer.
  • Under s 62 LPA 1925: General words in a conveyance can convert existing permissions or privileges into legal easements where there is diversity of occupation or a sale of part; they must be continuous and apparent or used at the time of the transaction. It is common practice to exclude s 62 and Wheeldon v Burrows by express drafting to avoid unintended easements, and instead grant tailored express rights.

• Prescription: Long, uninterrupted, and non-permissive use “as of right” (nec vi, nec clam, nec precario). Under the Prescription Act 1832, 20 years’ use is typical. In registered land, properly established prescriptive legal easements may override if they meet Schedule 3 conditions.

Key Term: equitable easement
An easement arising in equity where legal formalities are not satisfied but the agreement meets contract formalities, or where the dominant owner holds only an equitable estate. It requires appropriate protection to bind successors.

Key Term: agreed notice
A Land Registry entry made with the proprietor’s consent to protect an interest.

Key Term: unilateral notice
A Land Registry entry made without the proprietor’s consent to protect an interest; the proprietor may object.

Registration and Protection

• Registered land:

  • Express legal easements created since 13 October 2003 must be completed by registration to bind successors (s 27 LRA 2002). If not registered, they will be equitable only and depend on notice.
  • Certain legal easements (typically implied or prescriptive) may be overriding under Schedule 3 paragraph 3 LRA 2002, binding a purchaser if known to them, obvious on a reasonably careful inspection, or exercised within the year preceding the disposition.
  • Equitable easements must be protected by notice on the charges register of the servient title. Without a notice, they will be postponed to a later registrable disposition for value (s 29 LRA 2002) unless the purchaser had actual notice and the court intervenes (but the statutory priority scheme governs).

• Unregistered land:

  • Equitable easements must be registered as a Class D(iii) Land Charge against the name of the estate owner at the time of grant to bind purchasers (LCA 1972). If not registered, they are void against a purchaser for money or money’s worth.
  • Legal easements bind irrespective of notice and do not require Land Charges registration.

Extinguishment and Variation

Easements may end by:

• Common ownership and possession of dominant and servient land (merger). The easement does not automatically revive on later separation.
• Express release by deed by the dominant owner.
• Implied release/abandonment where prolonged non-use and conduct inconsistent with future use indicate relinquishment; mere non-use without more is often insufficient.

Other mechanisms include statutory stopping-up orders for highways; note that a public right of way is not an easement but a highway maintainable under public law rules.

Key Term: public right of way
A right exercisable by the public to pass over land; created by dedication or statute and distinct from private easements.

Worked Example 1.1

A sells the rear of her garden to B, retaining the front and granting a deed right of way "for all purposes forever" over her retained land for B to access the street. B later sells the rear land to C. Does C have the benefit of the right?

Answer:
Yes—if the deed is properly executed and, if registered land, registered as an easement, all requirements are satisfied. The right binds successors to both dominant and servient land.

Enforceability of Easements

Legal easements, created by deed and (if registered land) registered, bind successors. In registered land, implied or prescriptive legal easements may override in the conditions noted above. Equitable easements (e.g., where formalities are defective or the dominant estate is equitable) will bind successors only if appropriately protected (notice on the charges register for registered land; Class D(iii) Land Charge in unregistered land), or if the purchaser is bound under the doctrine of notice in unregistered land.

Practical Drafting and Transaction Points

• When selling part, grant and reserve tailored express easements to avoid uncertainty and unintended implied rights. Consider excluding s 62 and Wheeldon v Burrows unless intended.
• Ensure rights are sufficiently defined (route of access, extent of parking, service routes) and consider maintenance obligations and rights of entry for repair.
• Verify the title shows the benefit of necessary rights (“together with” in conveyances; property register entries). Check burdens (“excepting and reserving” or “subject to” provisions; charges register entries).
• In registered land, protect equitable easements by notice; in unregistered land, register Land Charges.

Exam Warning (Easements)

Claims to general recreational rights, undefined rights, or purported easements conferring exclusive occupation are not valid easements and will usually fail to bind future owners. Note, however, modern case law has recognised that certain recreational rights closely connected to the use of the dominant land (e.g. rights to use shared leisure facilities forming part of the estate) may be valid easements if the Re Ellenborough Park criteria are met and the rights are sufficiently defined. Exclusive occupation or rights inconsistent with the servient owner’s reasonable use remain invalid.

Revision Tip (Easements)

If a right (e.g. parking or storage) gives the dominant holder near-exclusive use or blocks all reasonable use by the servient owner, it is too extensive and not a valid easement. In registered land, check whether an express legal easement has been registered—if not, it may be merely equitable and vulnerable to loss of priority.

Worked Example 1.2

On a sale of part, the seller has historically used a path over the portion being sold to reach the retained field. The transfer to the buyer is silent on easements. After completion, the seller continues using the path and insists a right of way was implied.

Answer:
Easements can be implied only in limited circumstances. Wheeldon v Burrows benefits the buyer, not the seller; s 62 is similarly in the buyer’s favour. Reservation in favour of the seller is construed strictly and will generally require express wording unless necessity or common intention applies. Without necessity or a clear common intention, the seller will not have a reserved easement. Best practice is to reserve rights expressly at the time of sale.

Freehold Covenants

A freehold covenant is a promise that impacts the use of land. Covenants control development, protect amenities, and can bind or benefit future landowners—if enforceable.

Key Term: positive covenant
A covenant requiring expenditure or activity, not enforceable by default against subsequent purchasers of the burdened land.

Key Term: restrictive covenant
A covenant restraining use of land. May bind successors in title in equity.

Types of Covenants

• Positive covenants: To perform an action or expend money (e.g. “maintain wall”), never passed automatically to successors in title of the burdened land.
• Restrictive covenants: To refrain from activities (e.g. “not to build”), which may, in equity, bind successors of the servient land if strict conditions are satisfied.

Enforceability of Covenants

• Burden at law: Neither positive nor restrictive covenants at common law “run with the land” to bind successors of the burdened land.
• Burden in equity (restrictive covenants only): A restrictive covenant may bind successors under the rule in Tulk v Moxhay if:
  • The covenant is strictly negative in substance.
  • The covenantee retained identifiable benefited (dominant) land at the date of the covenant.
  • The covenant benefits (touches and concerns) that land.
  • The original parties intended for it to bind successors (s 79 LPA 1925 deems “successors” language unless excluded; the intention is generally implied unless expressly limited).
  • The successor to the burdened land has proper notice (in registered land, by entry of a notice; in unregistered land, by registration as a Class D(ii) Land Charge).

Key Term: notice
Mechanism in registered land to protect interests on the charges register; determines priority against subsequent purchasers (ss 29–32 LRA 2002).

Key Term: Land Charges registration
System to protect certain equitable rights in unregistered land by registering against the name of the estate owner at the date of grant (LCA 1972).

Benefit and Its Transmission

The benefit of a restrictive covenant must have passed to the claimant:

• Annexation: The benefit is attached to the land either expressly in the covenant or by statute (s 78 LPA 1925 can operate as statutory annexation where the land intended to benefit is sufficiently identified; see Crest Nicholson guidance on identifying the benefitted land).
• Assignment: Transfer by deed to a successor in title, typically on conveyance of the benefited land; must be contemporaneous with the assignment of that land and identify the land intended to benefit.
• Building scheme: A common vendor subjects lots within a defined estate to a consistent scheme of covenants for mutual benefit; owners can enforce against each other where scheme conditions are met.

Key Term: annexation
Attaching the benefit of a covenant to land so that it runs with that land to successors.

Key Term: assignment (of benefit)
A transfer of the benefit of a covenant by deed to the successor owner of the benefitting land.

Key Term: building scheme
A mutually enforceable network of covenants across lots within a defined development under a common scheme.

Positive Covenants and Indirect Enforcement

The burden of positive covenants cannot run with freehold land at law or in equity. Indirect enforcement mechanisms include:

• Indemnity covenants: A chain of contractual promises by successive owners to indemnify the original covenantor; enforceable against the covenantor’s successors by privity of contract only if the chain is intact.
• Mutual benefit and burden: A person who chooses to take the benefit conferred by a deed is required to accept the corresponding burden (e.g. using a shared private road conditional on contributing to its upkeep). This requires a close connection between the benefit and the burden in the same transaction and cannot be used to impose free-standing positive obligations.
• Leasehold structure: Positive covenants can run between landlord and tenant; restructuring by granting a lease may allow enforcement of positive obligations against assignees.

Key Term: indemnity covenant
A contractual promise by a purchaser to indemnify the seller against liability under positive covenants, creating a chain back to the original covenantor.

Key Term: mutual benefit and burden
Doctrine that one who takes a benefit under a deed must accept associated burdens arising in the same deed.

Registration and Protection​

• Registered land: Restrictive covenant burdens are typically protected by agreed or unilateral notices on the charges register. Without a notice, a purchaser for valuable consideration will generally take free of the covenant (subject to the statutory priority rules). Positive covenants do not require entry but are not binding on successors to the burdened land without indirect mechanisms.
• Unregistered land: Restrictive covenants must be protected by a Class D(ii) Land Charge to bind purchasers; if not registered, they are void against a purchaser for money or money’s worth. Positive covenants do not require registration but will not bind successors unless an indemnity chain exists or mutual benefit and burden applies.

Worked Example 1.3

D sells Plot 1 to E, retaining Plot 2. The sale deed states that E “will not construct any building higher than 2m” on Plot 1 "for the benefit of Plot 2." E sells to F, who applies for permission to build a tall garage. F claims not to be bound. Is she correct?

Answer:
No—if properly registered, the covenant can bind F in equity if:

• It is negative, with an identified benefited land (Plot 2);
• The benefit has passed to D’s successors by annexation or assignment.
• F has notice by registration.

Worked Example 1.4

G sells land to H, covenanting that H will “pay half the cost of maintaining a shared access road.” H sells to J, who stops paying. G sues J. Is J liable for payment?

Answer:
No. As a positive covenant, its burden cannot bind successors of the servient land. G may only recover from the original covenantor H, or enforce indemnities within the contract chain. Only mutual benefit and burden will bind successors if J continues to use the road, subject to contributing to its upkeep.

Remedies and Modification

Remedies for breach of restrictive covenants include:

• Injunction: To restrain breach or require removal of offending works; courts may grant a mandatory injunction to restore compliance.
• Damages: May be awarded in lieu of an injunction. Negotiating damages can be awarded to reflect the price a reasonable person would have demanded for releasing the covenant where appropriate.
• Declaratory relief: Confirming rights and obligations.

Modification or discharge of restrictive covenants may be sought under s 84 Law of Property Act 1925 from the Upper Tribunal (Lands Chamber) on grounds including obsolescence, impediment to reasonable use, lack of injury to others, or agreement.

Key Term: s 84 LPA 1925
Statutory jurisdiction of the Upper Tribunal to discharge or modify restrictive covenants on specified grounds.

Exam Warning (Covenants)

Covenants can only burden land in equity if properly registered. Positive obligations do not bind successors in title unless indirect, e.g., a chain of indemnities or by taking an associated benefit. Ensure the benefited land is identifiable and the benefit has passed.

Transactional and Title Points

• In registered land, read the charges register carefully to identify covenants burdening title; obtain copies of filed instruments to construe their scope.
• In unregistered land, search the Land Charges Register (Form K15) against the names of prior estate owners for their years of ownership to reveal Class D(ii) covenants.
• On sale of part, draft new covenants and reserve rights expressly; consider building schemes in developments.
• Planning permission does not override private covenants. Compliance with planning and building regulations must be addressed separately from any restrictive covenant issues.

Worked Example 1.5

In unregistered land, a 1988 restrictive covenant “not to build beyond a single storey” was not registered as a Class D(ii) Land Charge. The servient land is sold for value in 2024, and the new owner proposes a two-storey extension. Can the original covenantee restrain the extension?

Answer:
No. In unregistered land, a restrictive covenant created after 1 January 1926 must be registered as a Class D(ii) Land Charge against the name of the estate owner at the date of grant. If not registered, it is void against a purchaser for money or money’s worth. The new owner is not bound.

Mortgages

A mortgage is security for a loan, entitling the lender to enforce rights against the property if the debt is not repaid.

Creation and Types

• Legal mortgage: Must be created by deed (LP(MP)A 1989 s 1; s 52 LPA 1925). In modern practice, a “charge by deed expressed to be by way of legal mortgage” (s 87 LPA 1925) is used. For registered land, it must be completed by registration on the charges register (s 27(2)(f) LRA 2002) to take effect at law.
• Equitable mortgage: Arises where legal formalities are not satisfied but there is a binding contract to create a mortgage (meeting s 2 LP(MP)A 1989 formalities), or the mortgagor has only an equitable estate.

Multiple mortgages may be created; priority between them is important. In registered land, the order in which charges are registered ordinarily determines priority (subject to any agreed subordination). In unregistered land, priority can depend on the date of creation and possession of title deeds, with equitable mortgages protected by Land Charges registration.

Mortgagee’s Powers and Borrower Protection

• Right to payment: The lender may sue for the debt.
• Right to possession: A mortgagee is entitled to take possession on default and, at law, even before default; practically, for residential property, a court order is typically sought. The court has a discretion under s 36 Administration of Justice Act 1970 (as clarified by s 8 AJA 1973) to adjourn, stay, or suspend possession where the borrower can pay sums due within a reasonable period—often the remaining mortgage term.
• Power of sale: Implied by s 101 LPA 1925 for mortgages by deed, exercisable once conditions in s 103 are met (e.g. three months’ notice demanding payment of principal given, or interest two months in arrears, or breach of an obligation). Modern mortgage terms often contractually elaborate these triggers. A mortgagee can sell without first taking possession. The mortgagee owes duties to act in good faith and take reasonable care to obtain the true market value (Cuckmere Brick; Silven Properties).
• Appointment of a receiver: The mortgagee may appoint a receiver (s 101 LPA 1925) over income-producing property. The receiver is the mortgagor’s agent and applies income to interest and capital according to the mortgage deed.
• Foreclosure: Rare. A court order extinguishes the equity of redemption and vests the property in the lender. Courts prefer sale to foreclosure.

Borrowers are protected by:

• Equitable right to redeem: The mortgagor can redeem on payment of the debt and reasonable costs even after the legal redemption date. Clauses that unreasonably impede redemption (clogs on the equity of redemption) are void. Collateral advantages may be upheld if reasonable and not unconscionable, especially in commercial contexts.
• Consumer regulation: Residential mortgages are subject to regulatory controls. Unfair terms can be scrutinised and struck down; penalty interest provisions may be unenforceable if they go beyond a genuine pre-estimate or deterrence.
• Protection from undue influence: Where a mortgage or guarantee is procured by undue influence or misrepresentation (commonly in family settings), it may be set aside unless the lender took reasonable steps, including ensuring the surety received independent advice.

Key Term: power of sale
The lender’s right to sell the mortgaged property when conditions are met; accompanied by duties to act in good faith and obtain proper price.

Key Term: receiver
A person appointed by the mortgagee to collect and apply income from the mortgaged property; acts as agent of the mortgagor.

Key Term: foreclosure
A court-ordered process vesting the property in the mortgagee and extinguishing the mortgagor’s equity of redemption.

Key Term: equity of redemption
The mortgagor’s equitable right to redeem the mortgage by paying the debt and costs even after the legal redemption date.

Worked Example 1.6

K grants a legal mortgage by deed to Bank M for registered land. She defaults, owing £180,000. Bank M gives valid notice, meets statutory requirements, and exercises power of sale, auctioning the property for £175,000 (but omits that planning permission was granted to convert to flats). K discovers her property is worth £200,000. What remedy is available?

Answer:
Bank M, as mortgagee, owes a duty to obtain the market value and act in good faith. K may recover the difference between the true market value and sale price if the bank's marketing was deficient.

Transmission and Priority

• Registered land: A registrable disposition of a registered charge for valuable consideration takes priority under s 29 LRA 2002 subject to prior registered interests, overriding interests, and interests protected by notice or restriction. A later mortgage properly registered may take priority over an earlier equitable mortgage without notice. Agreeing priority (deeds of postponement) is common.
• Unregistered land: Legal mortgages bind irrespective of notice; equitable mortgages must be protected by Land Charges (typically Class C(i) for puisne mortgages) to bind purchasers. Failure to register a relevant land charge will render it void against a purchaser for money or money’s worth.

Practical Points

• Creation: For registered land, ensure the charge is registered; otherwise, the lender’s security will not bind a subsequent purchaser.
• Occupiers’ rights: Ascertain whether any occupiers may have overriding interests (e.g. beneficial interests under implied trusts with actual occupation). Overreaching protects purchasers and lenders if capital money is paid to two trustees or a trust corporation.
• Possession: Consider the court’s discretion to suspend under AJA 1970 where realistic repayment proposals can be made.
• Sale: Record marketing steps; disclose material matters affecting value to ensure best price is obtained.

Key Point Checklist

This article has covered the following key knowledge points:

• Easements are rights annexed to land for a definite purpose, valid and binding if all legal requirements and formalities are satisfied.
• In registered land, express legal easements created post-2003 must be registered; implied or prescriptive legal easements may override if the conditions in Schedule 3 LRA 2002 are met.
• Equitable easements must be protected by notice in registered land or as a Class D(iii) Land Charge in unregistered land to bind purchasers.
• Only restrictive covenants (not positive) may burden successors of the servient land in equity if all Tulk v Moxhay requirements are met and the benefit also passes by annexation, assignment, or building scheme.
• The burden of positive covenants does not run with freehold land. Enforcement is indirect via indemnity chains or mutual benefit and burden when the successor takes a connected benefit.
• Restrictive covenants must be protected: by notice in registered land; by Class D(ii) Land Charge in unregistered land. Planning permission does not displace private covenants.
• Modification/discharge of restrictive covenants is available under s 84 LPA 1925 before the Upper Tribunal.
• Mortgages grant lenders strong remedies (payment, possession, sale, foreclosure), but borrowers have rights to redeem and protection from unfair terms and undue influence.
• On exercise of power of sale, the lender must act in good faith and take reasonable care to achieve true market value; failure gives rise to damages.
• Registration and priority rules (LRA 2002) govern which interests bind purchasers in registered land; Land Charges registration and the doctrine of notice apply in unregistered land.
• Overreaching protects purchasers and lenders if capital money is paid to at least two trustees, detaching beneficial interests from the land.

Key Terms and Concepts

• easement
• dominant tenement
• servient tenement
• covenant
• positive covenant
• restrictive covenant
• mortgage
• mortgagor
• mortgagee
• equitable easement
• agreed notice
• unilateral notice
• overriding interest
• overreaching
• public right of way
• annexation
• assignment (of benefit)
• building scheme
• indemnity covenant
• mutual benefit and burden
• s 84 LPA 1925
• power of sale
• receiver
• foreclosure
• equity of redemption
• Land Charges registration
• notice