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

Learning Outcomes

After reading this article, you will be able to define, apply, and distinguish the essential legal principles governing easements, freehold covenants, and mortgages. You will be able to explain their formalities, creation, enforceability (including the transmission of benefits and burdens), and identify appropriate remedies for breach. You will be equipped to analyse fact scenarios, identify pitfalls, and advise clients or examiners effectively on enforceability and remedies—core SQE2 skills.

SQE2 Syllabus

For SQE2, you are required to understand the legal principles, mechanisms for creation, and the means of enforcement of land law proprietary rights. Ensure your revision covers:

• 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.

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: 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.

Essential Requirements

A right is a valid easement only if:

1. There is a dominant and a servient tenement—two distinct pieces of land.
2. The right benefits (accommodates) the dominant land itself, not just the current owner.
3. The tenements are owned/occupied by different people.
4. The right is clear, capable of grant, and does not give joint possession or impose expenditures on the servient owner.

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

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

Creation of Easements

Easements may be created by:

• Express grant or reservation: By deed, over freehold or equivalent leasehold term. Must be properly executed and (if registered land) entered on the register.
• Implied grant or reservation: By necessity (no other access), by common intention (essential to use agreed), under the rule in Wheeldon v Burrows (conversion of previously-used rights as quasi-easements when land is split), or by s62 Law of Property Act 1925 (uplifting privilege to easement if diversity of occupation or continuous/apparent use).
• Prescription: Long, uninterrupted, and non-permissive use (usually 20 years or more).

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. Equitable easements (e.g., defective formalities or for life only) only bind successors if a notice is registered or they have actual/constructive notice.

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.

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.

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

Types of Covenants

• Positive covenants: To perform an action or expend money (e.g. "maintain wall"), never passed automatically to successors in title.
• Restrictive covenants: To refrain from activities (e.g. "not to build"), which may, in equity, bind successors.

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.

Enforceability of Covenants

• Burden at law: Neither positive nor restrictive covenants at common law “run with the land” (bind successors of the burdened land).
• Burden in equity (restrictive covenants only): May run under the rule in Tulk v Moxhay if:
  1. The covenant is strictly negative.
  2. The covenantee retains identifiable benefited (dominant) land at the date of covenant.
  3. The benefit “touches and concerns” the land, not just the owner.
  4. The original parties intend for it to bind successors (implied unless expressly excluded).
  5. Successor has proper notice (usually via registration).

Worked Example 1.2

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.

Transmission of Benefit and Alternative Enforcement

• The benefit of a restrictive covenant can pass to successors by annexation (express wording or statute), assignment (written transfer), or as part of a building scheme.
• The burden of positive covenants cannot run with land at law or in equity. Indirect enforcement may occur via:
  • Indemnity covenants—a chain of contracts back to original covenantor.
  • Doctrine of mutual benefit and burden—the successor chooses to take a benefit conditional on fulfilling an associated burden (e.g., use of shared driveway conditional on contributing to its upkeep).
  • Granting a lease (as covenants will bind assignees of a lease).

Worked Example 1.3

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.

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.

Mortgages

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

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.

Creation and Types

• Legal mortgage: Must be created by deed and, for registered land, registered to be effective.
• Equitable mortgage: Arises by contract, failed deed, or when the mortgagor holds only an equitable interest.

Mortgagee’s Powers and Borrower Protection

• Right to payment: Lender may bring an action to recover the outstanding debt.
• Right to possession: Lender entitled to take possession after default, subject to safeguards (e.g., court order for dwellings).
• Power of sale: May be exercised (after required notice and arrears) even without possession, provided statutory requirements are met and the lender exercises care to achieve market value.
• Appointment of a receiver: Most often used where the mortgaged property is income-producing; the receiver manages and applies income.
• Foreclosure: Rare—court order vests property in lender, extinguishes equity of redemption.

Borrowers are protected by:

• Equitable right to redeem: Borrower may pay off the mortgage in full at any time; clauses that unreasonably impede redemption (“clogs”) are void.
• Consumer regulation: Unfair or unreasonable interest rates and other terms may be struck down.
• Protection from undue influence: Mortgages procured by pressure or misrepresentation (commonly within the family) may be set aside; lenders must ensure independent advice is available to non-commercial sureties.

Worked Example 1.4

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

• When multiple mortgages are created, the priority for repayments will be determined by date of registration (registered land) or deposit of deeds (unregistered land).
• Subsequent mortgages (puisne mortgages) must be properly registered to take priority.
• Legal mortgages take precedence over equitable ones.

Revision Tip (Mortgages)

When analysing a priority or enforcement question, identify (1) whether the mortgage is legal or equitable, (2) formalities for creation and registration, and (3) the borrower's protections or defences available.

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.
• 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.
• Burden of positive covenants does not run with land except indirectly by indemnities or mutual benefit and burden.
• Mortgages grant lenders strong remedies (payment, possession, sale, foreclosure), but borrowers have rights to redeem and protection from unfair terms and undue influence.
• The effect of registration and overreaching is critical for determining enforceability in practical SQE2 scenarios.

Key Terms and Concepts

• easement
• dominant tenement
• servient tenement
• covenant
• positive covenant
• restrictive covenant
• mortgage
• mortgagor
• mortgagee