Covenants are obligations entered into by deeds. They usually involve promises by holders of interests in land. Positive covenants involve positive obligations to do something, eg to maintain and keep a fence in good condition, whereas, restrictive covenants involve a promise not to do something, eg not to carry out certain kind of business or effect a repair without the consent of the land owner, ie the owner of the benefited property. Restrictive covenants are proprietary in nature as opposed to contractual and as such they are said to "run with the land" and will inexorably have third party consequences because of their nature as proprietary rights. Contractual rights in this sense do not have third party consequences as they are governed by the privity of contract principle. But note that the burden of positive covenants does not run so as to bind successors in title of the covenantor unlike a restrictive covenant.
The burden of a restrictive covenant can run in equity under the doctrine of Tulk v Moxhay, but only if certain complex and technical conditions are met. However, our focus in this article is more on a species of interests known as easements or servitudes in some jurisdictions. An easement is a right enjoyed by one landowner over the land of another, both plots usually being in close proximity. This contiguity or propinquity or "neghbourliness" of the two properties commonly known as the servient tenement [or the burdened property] and the dominant tenement [or the benefited property] is indispensably essential to all easements for there can be no easement in gross. See Gale on Easements (17th ed 2002) para 1.01.
It is trite and axiomatic that easements and covenants remain vitally important in the twenty-first century conveyancing. The law of easements and covenants has practical implications for every landowner. Most freehold estates in the Bahamas are subject to one or more easements and some properties have the benefit or burden of restrictive and positive covenants. As previously mentioned, these interests can be fundamental to the use and enjoyment of property. For instance, many landowners depend on easements in order to obtain access to their property. Restrictive covenants may provide, for example, that a trade or business should not be carried out on, or that no more than one dwelling house should be built upon, a neighbouring plot of land. A person selling a piece of property may use a restrictive covenant to impose a term to the effect that specific business may not be carried out on the property. This may be owing to the fact that he himself is undertaking that kind of business or that the location of the property may not be suitable for that kind of business.
Without the vital role that easements and covenants play in the regulation of the use of land in any well regulated jurisdiction, the full extent to which land can be enjoyed could not be realised. It is quite clear that many properties would be unable to exist fruitfully without rights over neighbouring land. Easements and covenants are enforceable rights and obligations. Every society protects and enforces these rights and obligations. These incorporeal hereditaments, as they are commonly referred to in real property jurisprudence have potential to impede developments and housing policy sometimes. Covenants may also impede land development, but the grant of planning permission does not extinguish a restrictive covenant which may confer upon a landowner an enforceable right to prevent new buildings being erected on neighbouring land.
Easements can also pose a potential problem given its anomalous mode of operation sometimes, as it was held in one unique case of Benn v Hardinge (1993) 66 P & CR 246 that a right of way granted in 1818 and never used has nevertheless not been abandoned. One would have thought that this kind of easement would have been extinguished by negative prescription.
Easements and covenants rights play a vital part in enabling the efficient operation of freehold developments and in preserving the quality of life of people who live there. Easements and covenants are therefore capable of both limiting and facilitating the use of land. A positive easement allows a landowner to go onto or make use of some installation on his or her neighbour’s land. This could be a right of way providing access (vehicular or pedestrian). It could be a right to install and use a pipe or a drain. A negative easement is essentially a right to receive something from land owned by another without obstruction or interference. The law recognises as negative easements the right of support of buildings from land (or from buildings), the right to receive light through a defined aperture, the right to receive air through a defined channel and the right to receive a flow of water in an artificial stream. Thus, a landowner may not be allowed to excavate or deal with his land in such a way that it might affect other peoples use and enjoyment of their own land although, modern environmental laws would adequately deal with this as well apart from ordinary rules of property law.
Covenants are contractual in origin, and, as a matter of contract, bind only the party who gave the promise (the covenantor) and are enforceable only by the party who received it (the covenantee). However, where the promise is made in relation to land and the promise is restrictive of the user of that land, a covenant can have some characteristics which are normally associated with property rights. It was in this sense that we previously said that restrictive covenants are proprietary in nature.
We also say that easements are appurtenants or appendants or pertinents to property in that they are ancillary to the use and essential to the enjoyment and use of the property to which they are "attached". There are different kinds of easements depending on their mode of creation, eg ranging from express grant, implied grant, express reservation, implied reservation, prescriptive easement or easement by prescription to statutorily created easements. These are the modes of creation of easements and servitudes.
Section 52 of Law of Property Act 1925 will also create incidental easements necessary for the use and enjoyment of property by way of a conveyance but parties should not rely on this as this is not as straight forward as it may appear. Ideally, in any given conveyance, parties should take into critical consideration the need to expressly create and reserve the necessary easements which the purchaser will have and which the seller intends to reserve for his continuing use and enjoyment over the property, otherwise this has a serious potential to cause problem in the future. The approach of the law in progressive jurisdictions is to promote clarity by demanding sufficient specificity at the time of creation. Confusion and conflicts often arise in some jurisdictions with the nature, scope and mode of creation of easements in a simple conveyancing matter! This is also heavily attributable to slipshod or sloppy conveyancing on the part of attorneys representing the parties to say the least!
Some easements may exist in the future as overriding interests and not required to be entered on the register and this will potentially bind a subsequent acquirer or purchaser of the burdened property. That is why we also advise parties to make a visit of the properties they are purchasing before executing the contract and even the conveyance to satisfy themselves that the subject property has the benefit of an easements suitable to their needs.
The series of articles we will be featuring in the next few weeks, God willing, will try to address the general law governing the rights in question: the characteristics of such rights, how they are created, how they come to an end and how they can be modified. With a few exceptions, we do not examine purported problems unique to specific rights, such as rights to light or rights of support. We consider that the defects in the general law must be identified and addressed first. We believe that the article will provide benefits to those who are affected by the law, such as private homeowners, businesses and organisations that own property, real property developers and managers and those that deal with and develop land and professional advisers.
Easements, covenants and profits are all rights enjoyed by one party relating to the land of another. They are limited rights, falling short of rights of ownership or possession. Easements and covenants are functionally similar in terms of the role they play in controlling the enjoyment and development of land over time. The two rights are ancillary and complementary, each comprising an important tool for facilitating and controlling the use of land. In some cases, parties will be able to achieve the same result by means either of a negative easement or a restrictive covenant. Given this functional similarity, contemporaneous and consistent reform of all three types of interest might considerably simplify and rationalise the law.
Easements and profits are both "incorporeal hereditaments" that is, they belong to a defined list of rights recognised by the law of property as being, like land itself, a species of "real property" to which the rules of land law apply. If created expressly, such rights should be granted by deed. Once created and registered, they are binding against the whole world. All easements, and some profits are appurtenant (that is to say, attached) to a dominant estate in land. That is, once created for the benefit of an estate in land, they attach to that estate for the benefit of all those who subsequently become entitled to it. As a result, if A buys land that has the benefit of an easement – such as a right of way over B’s neighbouring land – A will be automatically entitled to exercise that right of way without any need to negotiate further with B. B will be obliged, like everyone else, not to interfere with A’s exercise of the right even if B is not the person who originally granted it.
CHARACTERISTICS OF EASEMENTS
INTRODUCTION
It is well established beyond any cavil that a right cannot be an easement unless four requirements are satisfied:
(1) there must be a dominant tenement and a servient tenement;
(2) the easement must accommodate the dominant tenement;
(3) the dominant and servient tenements must be owned by different
persons; and
(4) the easement must be capable of forming the subject matter of a grant.
We will examine the four requirements of an easement seriatim;
THERE MUST BE A DOMINANT AND A SERVIENT TENEMENT
This requirement means that "every easement is, in principle, linked with two parcels of land, its benefit being attached to a ‘dominant tenement’ and its burden being asserted against a ‘servient tenement". The requirement of a dominant tenement has been described as going to the heart of the nature of an easement. It has been said that it is well recognised by a long line of authorities that an essential element of any easement is that it is annexed to land and that no person can possess an easement otherwise than in respect of and in amplification of his enjoyment of some estate or interest in a piece of land. Authorities are legion on this. See for example, the case of Alfred F Beckett Ltd v Lyons [1967] Ch 449, 483, by Winn LJ. See also 1 Re Ellenborough Park [1956]; Ch 131, 163.
It is therefore essential that there is dominant land, or more accurately a dominant estate in land, to which the easement is attached. Should an attempt be made to create an easement which is not so attached (a so-called "easement in gross") it will be ineffective, for "it is trite law that there can be no easement in gross". The reason for this not far-fetched and they can be summed up as follows;
(1) To avoid capricious and personal benefits becoming easements.
(2) To promote clarity by demanding sufficient specificity at the time of creation.
THE EASEMENT MUST ACCOMMODATE THE DOMINANT LAND AND
BE CAPABLE OF FORMING THE SUBJECT MATTER OF A GRANT
Note that these two requirements are, respectively, the second and fourth characteristics listed in Re Ellenborough Park together.
The above in essence simply implies also that easement must "accommodate and serve". The requirement that the easement "accommodate and serve" the dominant land ensures that there is a nexus between the land and the right that is attached to it. The easement right attached to the land is often said to be a pertinent to the dominant or benefited property or tenement and as such is ancillary and essential to the use and enjoyment of the land.
At the same time, the courts have acknowledged the somewhat artificial nature of the concept that the land can itself benefit from the right:
The protection of land, qua land, does not have any rational, or indeed, any human significance, apart from its use and enjoyment by human beings, and the protection of land is for its enjoyment by human beings. For further illustration of the above, see the case of Stilwell v Blackman [1968] Ch 508, 524 to 525, by Ungoed-Thomas J.
The easement must accommodate the dominant tenement in that it is related to, and facilitates, the normal enjoyment of that land. We can refer to this as the contiguity or propinquity rule! In other words, the right claimed must be "reasonably necessary for the better enjoyment" of the dominant tenement. See Re Ellenborough Park [1956] Ch 131, 170, by Evershed MR.
An easement therefore benefits the owner of the land in his or her capacity as owner of that land, not personally, otherwise it will be said to exist in gross and it is a rigid construct in the law of easement and servitude that there can be no easement in gross. Such rights can never be recognised as rights in or of easement!
It follows that, for an easement to be effectively created, the plots of land in question must be sufficiently close to one another, ie within some degree of proximity. The dominant and servient properties need not be contiguous but there must be a degree of proximity. However, it is well established that an easement may benefit the business being carried out on the dominant land. In Moody v Steggles the grant of a right to fix a signboard to the adjoining property advertising the public house which constituted the dominant tenement was held to comprise an easement. In Copeland v Greenhalf, leaving carts and carriages on the neighbour’s verge was not objectionable on the ground that it accommodated the wheelwright’s business being conducted on the purportedly dominant land. The explanation for this principle is offered by Mr Justice Fry:
It is said that the easement in question relates, not to the tenement, but to the business of the occupant of the tenement, and that therefore I cannot tie the easement to the house. It appears to me that that argument is of too refined a nature to prevail, and for this reason, that the house can only be used by an occupant, and that the occupant only uses the house for the business which he pursues, and therefore in some manner (direct or indirect) an easement is more or Stilwell v Blackman [1968] Ch 508, 524 to 525, by Ungoed-Thomas J.
Re Ellenborough Park
[1956] Ch 131, 170, by Evershed MR.
See the right, conferred in Hill v Tupper (1863) 2 H & C 121, exclusively to put pleasure boats on a canal adjacent to the grantee’s land: see Megarry and Wade, The Law of Real Property (6th ed 2000) para 18-048. This may be best explained as a right which is too extensive to comprise an easement: see K Gray and S F Gray, Elements of Land Law (4th ed 2005) para 8.38.
The often quoted phrase that one cannot have a right of way in Northumberland over land in Kent is from Bailey v Stephens (1862) 12 CB (NS) 91, 115, by Byles J. See also Todrick v Western National Omnibus Co Ltd [1934] 1 Ch 561; Pugh v Savage [1970] 2 QB 373.
(1879) 12 Ch D 261.
[1952] Ch 488.
The claim to an easement by prescription failed on the ground that the use claimed was too extensive and was therefore not capable of forming the subject matter of a grant less connected with the mode in which the occupant of the house uses it. The right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or the occupier of a dominant tenement over a servient tenement. Note that in Copeland v Greenhalf, the claim to an easement by prescription failed on the ground that the use claimed was too extensive and was therefore not capable of forming the subject matter of a grant.
The notion that an easement must accommodate and serve the dominant land holds sway in common law jurisdictions. Recent Australian authority has recognised the importance of a nexus between the dominant land and the right in question, although it suffices that the business being carried out on the dominant land is being facilitated. See the case of Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 481 at [31].
The Canadian courts have applied the test that the right is "reasonably necessary" for the enjoyment of the dominant land. See also the case of 30 Depew v Wilkes (2002) 60 OR (3d) 499.
Many easements involve some interference with the possession and enjoyment of the servient land but it must be noted that not every right that seems to touch and run with the land will constitute an easement.
The purpose of the law in this area is always to ensure that capricious personal rights do not run with and bind the land and thereby constitute unnecessary incursions on the title.
The "touch and concern" requirement in the law of incorporeal hereditaments will be further examined in our next article.
Clement Chigbo [esq], a chartered arbitrator in the U.K., practises as a registered associate with the Law firm of C.F. Butler and Associates, Nassau, The Bahamas. He is currently a doctoral candidate and a peripatetic lecturer in law in the U.K. He can be contacted at
