If your studies with The Institute of Legal Secretaries and PAs have delved into the intricacies of land law, you will appreciate that there are a number of rights in land that can arise within our legal system. From the beneficial interests that flow from trusts in land to covenants and easements, there are myriad ways in which a particular piece of land may be burdened by another person’s right, and this article aims to look at these in turn.
Restrictive covenants
The first thing you need to know about restrictive covenants is that they are never any more than an equitable interest in land (in line with S.1 of the Law of Property Act 1925). This is unlike the easement that we will discuss next, which can also be a legal interest in land.
Provided both parties intend that the benefits of the covenant run with the land (pass on to future successors of the land); both have a legal interest in the land (rather than just an equitable interest); and the covenant “touches and concerns” the land (must either affect the mode of occupation or value of the land – Smith and Snipes Hall Farm Ltd. v. River Douglas Catchment Board [1949] 2 KB 500) – a valid covenant may be created.
It is fair to say that covenants are enforced in a very feeble and often arbitrary manner. Due to the fact that successive purchasers of the land are easily able to indemnify themselves from any possible legal action being brought against them and form a breach of covenant, this means that the litigant would have to sue the original covenantor – even if they have nothing to do with the latest breach.
Easements
As already mentioned above, easements can be both equitable and legal interests in land (provided they are registered with the Land Registry). They are both regarded as a proprietary interest in land, which means that they both will pass on to subsequent owners of the two pieces of land that are affected by the easement. The case of Re Ellenborough Park [1956] Ch 131 asserted the four-point test that must be satisfied in order to create a valid easement, as follows:
i. There must be a dominant (benefits from the easement) and servient (is burdened by the easement) tenement of land.
ii. The easement must “accommodate” the dominant tenement.
iii. The two separate tenements of land must have different owners.
iv. A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
An example of an easement would be where the dominant tenement of land has the right to pass over part of the land of the servient tenement in order to reach their property. The owner of the servient tenement is legally obliged to permit this at all times and is not entitled to inhibit the dominant tenement’s enjoyment of this right. As this example shows, easements can prove to be essential for certain land owners just to be able to enjoy their land on an everyday level.
Other rights in land
Licence
A licence is the lowest form of interest an individual could ever hold in land. This could be anything from a relative’s right to reside in your home to the statutory right that is extended to post personnel and other utilities staff to enter your premises in order to carry out their lawful duties. This type of right can be withdrawn at any time.
Profit à Prendre
This is a right whereby a person is permitted to take something from the land , e.g. the right to fish in a lake and take the fish. There is no requirement for the person benefitting from this right to physically own the land themselves.
Leases and Tenancies
These types of rights carry more weight than mere licences, and the person benefitting from such a right is able to bring legal action against the landlord in order to protect their numerous rights. Many statutory laws (and some common law) have been created over the centuries in order to control the relationship between landlords and tenants.
Trusts in Land
If you ever go on to study the law of trusts, you will appreciate just how complicated this area of our legal system really is. There are a number of ways in which a person’s right in land may come into existence through the law of trusts, and again, this can be a beneficial or legal right. There is one important rule that can never be forgotten when it comes to the creation of a trust in land: this must always been done in writing (whereas this is not necessarily the case with other types of trusts).
As you can see, there really are numerous ways in which a person can hold an interest in land, and this article only covered the main ones. Hopefully, this article has provided you with an opportunity to gain insight into land law or the chance to revise some of the vital legal requirements for the two main rights in land.