Paul owned the freehold of a house, Miskin Court, and the estate surrounding it. On the eastern side of the house was a long driveway running from the north to the south and connecting the house to roads on the northern and southern boundaries of the estate. Paul found the estate too large and expensive to manage and decided to sell the part of it lying to the north of the house (including the part of the driveway leading to the northern boundary) to Natasha, who wanted to build a house on it. In the deed of transfer, Paul granted to Natasha a right to connect the drains for the new house to existing drains on his retained land and Natasha entered into the covenants 'for the benefit of the seller's retained land':
(1) within six months to erect a wall along the new boundary between the properties (2) not to use the property for the purposes of any trade or business
(3) to contribute a fair proportion of the cost of maintaining the drains serving both properties.
A few years later Paul sold Miskin court and the remainder of the estate to Omar, who owned Eastcott Grange, a property abutting the entire eastern boundary of the estate. Shortly afterwards Natasha, having completed the construction of the house, sold her land to Sarah. Omar has observed several taxis parked along the northern part of the drive and has discovered that Sarah is operating a taxi service from the property. She has erected a gate that she keeps locked across the northern entrance o the drive. Omar has told Sarah that she must stop running the taxi business and remove the gate as it is preventing him gaining access to Miskin Court from the north. The wall that Natasha was to have constructed has not been erected and Sarah is denying it is her responsibility. Omar has also had to have repairs done to the drainage to the cost of which Sarah is refusing to contribute. For as long as Omar can remember he and his family as the owners of Eastcott Grange have regularly taken a shortcut across the northern part of the estate now owned by Sarah. Sarah has recently blocked off the gap in the fence which gave access to the shortcut, thus preventing its further use.
***Omar wants to know what rights he has and against whom can he enforce them. Explain to him his position.
*** In this question was are looking for you to demonstrate that you can:
Explain the relevant law covered by the question that you can;
Apply the law to the facts;
Recognise and discuss all the issues raised by the question;
Set out the answer logically and clearly;
Omar wishes to know whether he can stop Sarah from operating the business from her property and whether he can enforce access rights across her land. He would also like to know whether he could insist on the erection of a boundary wall and further, ensure a contribution towards the drainage expenses he has incurred. Omar’s potential rights stem from covenants which Natasha entered into with Paul and also an interest which may be an easement.
First dealing with the covenants: A covenant is a promise made by deed. When the covenants were originally made, Natasha bore the burden of these covenants whilst Paul had the benefit. As Omar was not privy to the original promises made by Natasha to Paul, he can only have gained their benefit if it passed to him with the land. Common law has developed four conditions for the benefit to pass. Firstly, the covenant must ‘touch and concern’ the land of the covenantee. The test here, laid down in Swift Investments, demands that: the covenant lacks utility if separated from the land, must affect its value or quality, and be ‘non-personal’ in nature.
Satisfaction of this test may be contended in light of Crest Nicholson which states that whilst “the benefit of a …covenant must be annexed to identified land…it can be so annexed for a limited time (such as whilst it remains the property of the current owner).” However, it seems on balance that the three covenants appear to satisfy this first condition. Secondly, the intention (when making the covenant) for the benefit to run must be evidenced, although by virtue of s78 LPA this can now be inferred. Thirdly, when the covenant was made the covenantee must have held the legal estate in the land. In this case, Paul was the covenantee when the covenants were made and he was the freehold owner of the land to which the covenants relate. Finally, in order to enforce the covenants, title must have been derived from under the original covenantee. Omar’s title was derived from Paul (the original covenantee). Apparently, Omar has the benefit of both positive and restrictive covenants.
Sarah will only bear the burden of these rights if it has passed to her with the land. At common law the burden will not run, but in equity Tulk v Moxhay substantially introduced non-statutory land planning. Tulk v Moxhay is only applicable to restrictive covenants and turns on the issue of ‘notice’. The effect is, for so long as Sarah had notice of the restriction to use the land for business purposes, she would have the burden of this covenant.
The other covenants are both positive in their nature. The House of Lords in Rhone v Stephens “definitely ruled that, in freehold land, the burden of a positive covenant cannot in equity be enforced against successors in title of the original covenantor”. Utilising the fact that “the original covenantor remains liable on his covenant”, Omar could potentially seek to enforce his rights under the positive covenant against Natasha. Of course, it is likely to be more convenient to seek to enforce breaches of covenant against Sarah as she is readily accessible. In accordance with usual practice, it is likely that Natasha, in order to avoid liability for future breaches of covenant, would seek an indemnity from Sarah, yet Sarah may have disputed this as Natasha had already breached the covenant to erect the wall by exceeding the time condition.
In regard to the payment towards the maintenance of the drainage, the rule in Halsall v Brizell should apply. This rule dictates that if the benefit of a covenant is to be accepted then the burden of the covenant must also be born. The application of this rule means that as Sarah has the benefit of the drains she will also have assumed the burden of this covenant.
Turning then to advise in respect of the two access issues. Firstly, there is the access by road from Miskin Court to the north. Secondly, there is the shortcut which Omar’s family have enjoyed through the fence. It must be asked whether there is an interest present with the characteristics of an easement and if so, whether the easement was properly created. An easement is a right over a piece of land for the benefit of another piece of land. It is a proprietary interest enjoyed by an estate owner and is only appurtenant to the land. Re Ellenborough Park gives the characteristics of an easement: There must be both dominant and servient tenements, the interest must accommodate the dominant tenement, there must be diversity in ownership or occupation and the interest must be capable of forming the subject matter of a grant. It appears that the access rights have the requisite characteristics of an easement.
The easements have not been created expressly as they were not mentioned in the deed of transfer. It would have been useful for Paul to include an express reservation in the transference of conveyance to Natasha so that he could reserve the use of the road to the north of Miskin Court. However, upon determination of the facts, it may be possible to argue the implied grant of easement of necessity. Sarah, as the current owner of the servient tenement, has the right to secure her land, but should provide Omar with a key.
In regard to the shortcut, for an easement to be created by prescription, there must have been 20 years uninterrupted use, not by force, in secret or with permission. As Omar’s family have been using this for ‘as long as he can remember’ it is possible that an easement would have been created by prescription and he can enforce this right, if necessary, by removing the obstruction which Sarah erected.
It appears that Omar can assert and enforce all of the rights addressed against Sarah, or in the case of the wall, possibly against Natasha depending upon the facts.
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