Learning Outcomes
After reading this article, you will be able to identify, explain, and apply the legal principles governing easements and restrictive covenants in property transactions. You will understand how to investigate title for these interests, distinguish their creation and enforceability, and advise on their practical impact for buyers and lenders. You will also be able to answer SQE1-style questions on this topic.
SQE1 Syllabus
For SQE1, you are required to understand the investigation of title as it relates to easements and restrictive covenants. Focus your revision on:
- The legal characteristics and types of easements and restrictive covenants
- How easements and restrictive covenants are created, protected, and enforced
- How to identify and advise on these interests when investigating title to registered and unregistered land
- The impact of these interests on buyers, sellers, and lenders in property transactions
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.
- What are the four essential characteristics of a legal easement?
- How can a restrictive covenant be enforced against a subsequent owner of the burdened land?
- What is the effect of failing to register a post-1925 restrictive covenant as a land charge in unregistered land?
- Name two ways in which an easement can be created without an express deed.
- True or false? A positive covenant will automatically bind successors in title to the burdened land.
Introduction
When acting for a buyer or lender, you must investigate title to identify any rights or restrictions affecting the property. Two of the most common are easements (rights over land) and restrictive covenants (obligations restricting land use). These interests can significantly affect the value, use, or marketability of land. For SQE1, you must be able to identify, explain, and advise on the creation, enforceability, and practical impact of easements and restrictive covenants.
Easements
An easement is a right enjoyed by one landowner over the land of another, such as a right of way or a right to run services.
Key Term: easement
A right benefiting one parcel of land (the dominant tenement) over another (the servient tenement), such as a right of way or to run pipes.
Essential characteristics
A valid easement must have all of the following:
- There must be a dominant and a servient tenement (two separate parcels of land)
- The easement must benefit the dominant land (not just a personal advantage)
- The dominant and servient tenements must be owned by different persons
- The right must be capable of being granted by deed (i.e., sufficiently certain and not too vague)
Key Term: dominant tenement
The land that benefits from the easement.Key Term: servient tenement
The land over which the easement is exercised and which is burdened by it.
Creation of easements
Easements can arise in several ways:
- Express grant or reservation: Created by deed, usually on a sale of part of land.
- Implied grant or reservation: Arises automatically in certain circumstances, such as necessity (e.g., landlocked land), common intention, or under the rule in Wheeldon v Burrows.
- Prescription: Acquired by long use (at least 20 years) as of right, without force, secrecy, or permission.
Key Term: prescription
Acquisition of a legal easement by long, uninterrupted use (usually 20 years), without force, secrecy, or permission.
Protection and enforceability
- In registered land, a legal easement created by express grant or reservation should be registered on the charges register of the servient title. Implied or prescriptive legal easements may override registration if they are obvious on inspection or have been used in the last year.
- In unregistered land, legal easements bind all purchasers automatically. Equitable easements must be registered as a land charge (Class D(iii)) to bind a purchaser for value.
Termination of easements
Easements may end by:
- Express release (usually by deed)
- Unified ownership (if both dominant and servient land come into common ownership)
- Abandonment (clear evidence of intention to abandon)
Worked Example 1.1
A owns Blackacre and sells part to B, granting B a right of way over A’s retained land. The right is not registered on A’s title. Is the right of way enforceable against a future purchaser of A’s land?
Answer: If the right of way was created by deed, it is a legal easement. In registered land, it should be registered on the charges register, but if not, it may still override registration if it is obvious on inspection or has been used in the last year. In unregistered land, a legal easement binds all purchasers automatically.
Restrictive covenants
A restrictive covenant is an obligation restricting the use of land for the benefit of another’s land, such as a promise not to build more than one house.
Key Term: restrictive covenant
A promise by one landowner (the covenantor) not to do something on their land, for the benefit of another landowner (the covenantee).
Creation and requirements
- Must be negative in substance (i.e., restricts activity, not requiring expenditure)
- Must benefit identifiable land owned by the covenantee
- Must be intended to run with the land (expressly or impliedly)
- In unregistered land, must be registered as a Class D(ii) land charge to bind a purchaser for value
- In registered land, must be protected by an entry on the charges register
Key Term: covenantor
The person who gives the promise and whose land is burdened.Key Term: covenantee
The person who takes the benefit of the promise and whose land is benefited.
Enforcement
- The original covenantee can always enforce the covenant against the original covenantor.
- Successors in title can enforce restrictive covenants in equity if the requirements above are met.
- The burden of a restrictive covenant does not pass at law but may pass in equity under the rule in Tulk v Moxhay.
Key Term: Tulk v Moxhay
The leading case establishing that a restrictive covenant can be enforced in equity against successors in title who have notice of the covenant.
Modification and discharge
A restrictive covenant may be modified or discharged by:
- Express release by the person with the benefit
- Application to the Upper Tribunal (Lands Chamber) under s.84 Law of Property Act 1925 (e.g., if obsolete or impedes reasonable use)
- Indemnity insurance (if enforcement risk is low)
Worked Example 1.2
C buys land subject to a restrictive covenant (registered as a land charge) not to build more than one dwelling. C wants to build two houses. What are C’s options?
Answer: C could seek a release from the person with the benefit, apply to the Upper Tribunal to modify or discharge the covenant, or obtain indemnity insurance if enforcement risk is low. If C proceeds in breach, enforcement action could be taken.
Exam Warning
If a restrictive covenant is not registered as a land charge in unregistered land, it will not bind a purchaser for value. Always check registration status when advising.
Investigating title for easements and restrictive covenants
When acting for a buyer or lender, you must:
- Review the official copies (registered land) or epitome of title (unregistered land) for references to easements and covenants.
- Check the charges register for entries relating to easements or restrictive covenants.
- In unregistered land, ensure land charges searches are made against all relevant names for the correct periods.
- Raise pre-contract enquiries and inspect the property for evidence of rights or breaches.
- Advise on the impact of any rights or restrictions found, including enforceability, risk, and possible solutions (e.g., release, modification, insurance).
Worked Example 1.3
You act for a buyer of a registered freehold property. The charges register refers to a right of way in favour of a neighbour and a restrictive covenant prohibiting business use. The buyer wants to run a business from home. What should you advise?
Answer: The right of way benefits the neighbour and burdens your client’s land. The restrictive covenant is enforceable if properly protected on the register. Advise the buyer that running a business would breach the covenant and could lead to enforcement. Options include seeking a release, applying for modification, or indemnity insurance (if risk is low).
Revision Tip
When investigating title, always check both the property and charges registers for references to easements and covenants. In unregistered land, check all relevant names and periods in land charges searches.
Key Point Checklist
This article has covered the following key knowledge points:
- Easements are rights benefiting one parcel of land over another, with strict legal characteristics.
- Easements can be created by express grant, implication, or prescription, and must be properly protected to bind successors.
- Restrictive covenants are negative obligations restricting land use for the benefit of another’s land.
- The burden of a restrictive covenant can pass in equity if requirements are met and the interest is properly protected.
- Investigation of title must identify, check, and advise on easements and restrictive covenants, including their enforceability and impact.
- In unregistered land, registration as a land charge is essential for enforceability against purchasers for value.
Key Terms and Concepts
- easement
- dominant tenement
- servient tenement
- prescription
- restrictive covenant
- covenantor
- covenantee
- Tulk v Moxhay
