The Law Relating to Appurtenant Rights over Freehold Land - Essay Example

Discuss the following ment: “The law relating to appurtenant rights over freehold land, such as easements, covenants, rent charges and profit a prendre” Different rights to the same parcel of real estate1 may be owned or controlled by different parties, one owning surface rights, one owning air rights and one or more owning sub surface rights. These rights can be severed by separate instruments. When articles of personal property are permanently affixed to land, they may become fixtures. As such, they are considered a part of the real estate and become subject to any charge on the property. Personal property attached to real estate by a tenant for the purpose of his or her business is classified as a trade, or chattel, fixture and remains personal property. Four legal tests determine if an item is a fixture or not: intent, relationship of the annexing party to the property, method of annexation and adaptability (which may be referred to as the Total Circumstances Test). An estate is the degree, quantity, nature and extent of interest a person holds in land. Freehold estates are estates of indeterminate length. Less-than- freehold estates are called nonfreehold, or leasehold, estates, and they concern tenants. A parcel of land may be a freehold and nonfreehold at the same time. A freehold estate may be a fee simple estate or a life estate. A fee simple estate can be absolute or defeasible on the happening of some event. A conventional life estate is created by the owner of a fee estate; a legal life estate is created by the Law. 1) Easement: An easement is a right in the land of another which enables the landowner to restrict in some way the use of adjoining land by another party. It is the right acquired by one person to use another’s real estate. There are two types of easements: easement appurtenant and easement in gross. An easement appurtenant involves two separately owned tracts. The track benefited is known as the dominant tenement2; the tract subject to the easement is called the servient tenement3. An appurtenant easement is an encumbrance to the servient estate and a benefit to the dominant estate. An easement in gross is a personal right, such as that granted to utility companies to maintain poles. Easements and profits are two kinds of rights which can be acquired over land belonging to another. Examples of easements are rights of light or of way; the extent of easements depend on how they are acquired. The following feature among the most common rights which may or my not be easements: Rights Capable of being Easements 1. A right to receive light through a defined aperture in a building. 2. A right to passage of air through a defined channel: Wong v Beaumont Property Trust4 (1965). 3. A right to have a building supported, e.g. by the wall of another building: Dalton v Angus & Co5 (1881). 4. A right to project a building over another person’s land. 5. A right to require the servient owner to fence his land: Crow v Wood6 (1971). Rights not Capable of being Easements 1. A right to view: Aldred’s Case (1610) (cf covenant in Gilbert v Spoor (1982)) 2. A right of privacy: Bernstein v Skyviews & General Ltd7 (1977). 3. A right to the general flow of air over land: Chastey v Ackland8 (1895). 4. A right to have the wall of a separate building projected from the weather by and adjoining building: Phipps v Pears (1965). 5. A right for the branches of a tree to overhang another person’s land. It is to be noted that easements of necessity are strictly limited to the circumstances of the necessity prevailing at the time of the grant. On the other hand the extent of an easement acquired by prescription depends on the extent of the user, and if the character or the mature of the user remains constant there is no objection to an increase in its intensity. See British Railways Board v Glass [1965] Ch 538. Examples of profits are rights to take game or to cut turf. Easements can only belong to landowner for the benefit of his land9, but profits can exist ‘in gross’, that is, they can be held by people who are not landowners for their own benefit. Essentials of an easement In Re Ellenborough Park [1956] Ch 131 the Court of Appeal approved the classification made by Cheshire10. There are four essentials: 1. There must be a dominant and a servient tenement. 2. The easement must accommodate the dominant tenement. 3. The dominant and servient owners must be different persons. 4. The right must be capable of forming the subject matter of a grant. There must be a dominant and a servient tenement This means that a right over land given to someone who does not own land capable of being benefited cannot be easement. This is expressed in the statement that ‘an easement cannot exist in gross’. The easement must accommodate the dominant tenement A right cannot be an easement unless it confers a benefit on the dominant tenement itself rather than its owner personally11. In addition there must be some natural connection between the two tenements, although they need not be immediately adjacent. See Hill v Tupper12 (1863) 2 H & C 121. The dominant and servient tenements must not be both owned and occupied by the same person. This derives from a basic principle that a man cannot have an easement over his own land. Rights habitually exercised by a man over part of his own land which would be easements if that part were separately owned and occupied are called ‘quasi – easements’. An easement is a right ‘in alieno solo’13 the land of another. The right must be capable of forming the subject matter of a grant This means that the right can only be an easement if it is of a kind that can be granted as an easement. 2) Profits a prendre A profit a prendre is a right to take something from the land of another. A profit may either be a several profit, that is, enjoyed by one person only or a profit in common, enjoyed by one person in common with others. Unlike an easement a profit is not necessarily annexed to a dominant tenement, but may be in one of the following forms: 1. A profit appurtenant: this is a profit annexed to a dominant tenement by the act of the parties, and runs with it. Such a profit complies with the same rules as applied to easements and must generally satisfy the same for essentials as apply to easements under Re Ellenborough Park (1956). Ch 131 Above. 2. A profit appendant: this is a profit annexed to land by the operation of law; probably the only one is a common of pasture, and no such common could be created after Quia Emptores 129014. 3. A profit pur cause de vincinage: This only exists when there are two adjoining commons which are not fenced off from each other and the cattle put on one common have always been allowed to stray on to the other and vice versa. 4. A profit in gross: this type of profit is exercised independently of the ownership of the land, hence there is no dominant tenement. Acquisition of profits a prendre Profits a prendre can be acquired in four ways: 1. By statute: This is illustrated by the effect of the Inclosure Acts15 or certain Local Acts of the Parliament. 2. By express grant: The grant must be by deed to create a legal profit. 3. By implied grant: s62 LPA 1925 applies to profits but the rule in Wheeldon v Burrows16 (1879) Ch D 31 does not. 4. By prescription: a) at common law. b) lost modern grant c) section 1 Prescription Act 1832. The periods are thirty and sixty years. By s16 Commons Registrations Act 1965, any period during which the servient tenement was requisitioned or grazing prevented for reasons of animal health must be detected from a claim based on either period. The 1832 Act only applies to profits appurtenant. 3) Rentcharges: A rent charge may be defined as an annual or other periodic sum charged on or issuing out of land where the owner has no reversion in the land but has power to distrain either by express provision in the instrument creating the charge or by statute. The Law Commission considered the effect of the creation of rent charges and reported a widely held view that the creation of rent charges invaded the principle of freehold tenure with sole purpose of providing a bonus for the builder: they concluded that the system, at the very least, radical reform. As a result a private member’s bill was introduced and received government support in its passage through Parliament to become the Rentcharges Act 1977. This Act was passed to prohibit the creation and provide for the extinguishment apportionment and redemption of all but very limited types of rent charge, the only two of any practical importance being the estate rentcharge and the variable rentcharge. Estate rentcharges A rentcharge created for the purpose of: 1. making covenants to be performed by the owner of the land affected by the rentcharge enforceable by the rent owner against the owner for the time being of the land or 2. meeting, or contributing towards, the cost of performance by the rent owner of covenants for the provision of services, the carrying out of maintenance or repairs, the effecting of insurance or the making of any payment by them for the benefit of the land affected by the rentcharge or for that or other land shall be an estate rentcharge not subject to the provisions for redemption provided it is nominal in amount or unless it represents a reasonable amount for the performance by the rent owner of any covenant referred to in (1) above. Variable rentcharges A rentcharge may be variable where the amount payable is related to some index and therefore not known in advance, or where the deed creating the rentcharge makes provision for variations to take effect at certain times in the future. In either the case, the Act will not affect this class of rentcharge until it ceases to be variable. Section 38(8) Limitation Act 1980 provides: ‘References in this Act to the possession of land shall, in the case of…rentcharges, be constructed as references to the receipt of the…rent, and references to the date of dispossession or discontinuance of possession of land shall, in the case of rentcharges, be construed as references to the date of the last receipt of the rent.’ The ‘estate rentcharge’ is defined to include a rentcharge created to meet the cost of the performance of covenants for the provision of services or the carrying out of maintenance or repairs by the owner of the rentcharge. The importance of the estate rentcharge lies in providing a way round the problem which arises from the fact that the burden of a positive covenant, e.g. to repair, does not rum directly with freehold land at law or in equity. The effect is to preserve certain rent charges paid by the individual owners of some freehold properties on estates which have been deliberately laid out for landscape or amenity purposes, the upkeep of which is financed by such payments. All other existing rent charges are to be phased out within 60 years. Rights of re-entry A rentcharge is a periodic payment charged on land and it may be annexed to a right of re-entry – that is a right to enter the burdened land and forcibly close the landowner’s estate unless the sum is paid. It is possible t use the combination of a rentcharge (to secure a sum of money) and the right of re-entry (to force payment) to support a positive covenant. The right of re-entry is itself an interest in land that can bind purchasers of the burdened land, even though it supports a positive obligation. Consequently, careful drafting of these ‘estate rentcharges’ as they are known can indirectly ensure performance of a positive obligation – because non payment means loss of the defendant’s estate in the land. Freehold Covenants A covenant is a promise contained in a deed. The deed may be (and usually is) a conveyance of a free hold estate in land, but the covenant may be contained in a separate deed. The type of promise contained in such deeds usually concerns the land, for example: 1. a promise not to build a factory. 2. a promise to maintain a fence; 3. a promise to keep land as open space. But there is nothing to stop the parties to the deed making any type of promise, although promises not concerning the land are limited in their enforceability. The person who makes the promise is the ‘covenantor’. The person to whom it is made is the ‘covenatee’. Hence the person seeking to enforce the covenant (the plaintiff) will are the covenatee and the defendant will be the covenantor. The land owned by the covenantee will have the benefit of the covenant, and so far as the covenant is concerned will be the ‘dominant tenement’. The land owned by the covenantor will have the burden of the covenant and will be the ‘servient tenement’. Positive and negative freehold covenants Covenants between freeholders may be either positive or negative. Positive covenants require the owner of the burdened land to take some action on his own property or property related to it, usually requiring the expenditure of money. An example is a covenant to pay for the upkeep of a private road. Negative (or ‘restrictive’) covenants require the owner of the burdened land to refrain from some activity on his own land. An example is the covenant against carrying on any trade or business on the land17. Covenants as contracts Covenants are promises by one person to another contained in a deed to do, or, more usually, not to do, something on their own or related land. The covenant is made between the covenantor and the covenantee and is enforceable like any other contractual obligation between these original parties. Covenants as interests in land Covenants comprise both a benefit (right to sue) and a burden (the obligation to perform). Both the benefit and burden may be ‘attached’ to the benefited and burdened land respectively so that they pass to later purchasers or transferees of it. Although the benefit and burden of each covenant may pass independently, before a covenant can be enforced in practice the claimant must prove he has the benefit and the defendant must be fixed with the burden. The relevance of ‘law’ and ‘equity’ in the enforcement of covenants If a person sues as on a covenant at law, he will be claiming that the defendant is subject to the burden of the covenant under the common law and should pay damages. The remedy is as of right. If a person sues on a covenant in equity, he will be claiming that the defendant is subject to the burden of the covenant under the rules of equity and susceptible to the discretionary equitable remedies of injunction and specific performance and to rules of registration. Note that, if the burden has passed to the defendant in equity, so must the benefit have passed to the claimant in equity. Principle 1: enforcement between the original covenantor and the original covenatee If the covenantor and covenantee are still in possession of their respective land, all covenants are enforceable and the covenantee may obtain damages, an injunction or specific performance (that is, he may sue at law or in equity). If the original covenantor has parted with the land (or never had land) that was subject to the covenant, he remains liable on all the covenants to whomsoever has the benefit of them, although damages only are available because the covenantor has no land on which to perform the covenant. If the original covenantee has parted with the land that had the benefit of the covenant; he may still be able to enforce the covenant against whosoever has the burden of it. However, at law, this right could easily have been given to another by an express assignment of the right to sue and, in equity, the court is likely in its discretion to refuse to grant an equitable remedy to such a claimant as he has no land capable of benefiting. Note that it is important to identify exactly who are the original covenantees and covenantors, especially as this may go beyond the actual signatories to a deed: s 56 LPA 192518. Principle 2: enforcement against successors to the original covenantor (passing the burden) It is not possible for the burden of any covenant to run at law. In equity, the burden of restrictive covenants only may pass, providing  the covenant is restrictive in nature;  the covenant touches and concerns the land;  at the date of the covenant, the covenant did actually confer a benefit on land owned by the original covenantee.  the burden of the restrictive covenant must have been intended to have run with the land of the original covenantor: s 79 of the LPA 1925. Principle 3: enforcement by successors to the original covenantee (passing the benefit) The benefit of both a positive and restrictive covenant may be passed at law or in equity. However, given that only the burden of a restrictive covenant may pass, and then only in equity, most practical examples concern the passing of the benefit of a restrictive covenant in equity. This will give benefit and defendant (burden) in suit in equity. CONCLUSION: The law relating to appurtenant rights over freehold land, such as easements, covenants, rent charges and profit a prendre includes a much wider and deeper in depth knowledge involving various entities and sub-entities. It covers a vast subject area and provides a large number of legal obligations and implications on the different aspects related to the nature of the land and to a certain extent the parties involved as well. REFERENCES  Abbey, Robert & Richards, Mark. (2002). Blackstone’s Guide to the Land Registration Act 2002, pg 21-22, 64-65, 142-145.  Bell, Cedric. D. (1999). Land: The Law of Real Property, 37 – 54  Berger, K. 1999. Property, Land Ownership & Use 4/Ed. Aspen Law Publishers, U.S.A.  Bernhardt, Roger. 1999. Property: Cases & Materials. West Publishing Company, U.S.A.  Consultation document, land registration for the 21st century (law commission no 254)  David, Beatty.2002. Unlawful Interference With Land 2/Ed. Sweet & Maxwell Ltd., U.K.  Dixon, Martin. 2005: Modern Land Law 5/E. Routledge Cavendish  Dodds Malcolm & Shepherd Chris (Eds.). (2001). Law Update 2001, London: Old Bailey Press., 294-297  Francis, A.1999. Restrictive Covenants & Freehold Land. Sweet & Maxwell Ltd., U.K.  Goo, S.H. 2002. Sourcebook on Land Law 3/Ed. Cavendish Publishing Ltd., U.K.  Goo, S.H. 2003. Sourcebook on Land Law. Gee Publishing.  Gravells, NP, Enforcement of positive covenants affecting freehold land, 110 LQR 346.  Gray Kevin & Gray Susan (2006). Elements of Land law, USA: Oxford University Press  Hudson, Alistair. 2004. New Perspective on Property Law, Human Rights & the Home. Cavendish Publishing Ltd., U.K.  Hudson, Alistair. 2004. New Perspectives on Property Law, Obligations & Restitution Cavendish Publishing Ltd., U.K.  Law Commission, Report of the Committee on positive covenants affecting land, (Cmnd. 2719), HMSO, 1965.  Law Commission, Transfer of land: report on restrictive covenants, (Report No. 11), HMSO, 1967  Law Commission, Transfer of land: the law of positive and restrictive covenants, (Report No. 127), 1984  Mackenzie, JA; Phillips, M, 2004: Land Law, 10th Edition Oxford University Press.  Preston, G.H. 1998. Restrictive Covenants: Affecting Freehold Land. Sweet & Maxwell Ltd., U.K.  Robson, E. 1998. Property Law 2/Ed. Sweet & Maxwell Ltd., U.K.  Selmi, James A.1999. Land Use Regulation: Cases & Materials. Aspen Law Publishers, U.S.A.  Singer, Richard. 1997. Property Law: Rules, Policies & Practices 2/Ed. Aspen Law Publishers, U.S.A.  Smith, P. 1997. The Law of Landlord & Tenant 5/Ed. Butterworth Law Publishers (Lexis-Nexis), U.K.  Smith, Roger. 2002. Property Law. Pearson Higher Education.  Stevens, R, The contracts (rights of third parties) act 1999, [2004]14LQR 292.  Thompson, Mark. 2003. Modern Land Law, Second Edition. Oxford University Press,  Wonnacott, Mark. 2006: Possession of Land. Cambridge University Press  Worthington, Sara. 2001. Personal Property: Law, Text & Materials. Hart Publishing, U.K. Read More