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Possession of the burdened land


The legal issue in the first part of the case scenario separates certain areas of the law regarding easements on whether certain rights can exist as easements and if the burden of an easement can affect a person who takes propriety possession of the burdened land. The legal issue also encompasses whether or not Gordon is burdened by Jamie’s right to park his car regardless of the fact that this legal easement that was granted by Hugh was not registered. Another legal issue to be tackled is on whether the easement to display a sign advertising Delish and the daily menu on the wall of the Homestead exists and if so, how such an easement was created. The law on easements in accordance with relevant case law will be used in order to give adequate advice.

Roger (2006) states that an easement is a right to obtain some degree of benefit from the land of another and these rights are either negative or positive. Easements must be annexed to the land which is close to one part of land and this is the dominant tenement. The question that arises in the first part of this case study is whether or not this easement is legal hence binding. According to Dixon (2009) easements can either be legal or equitable. The Law of Property Act 1925(LPA)(s 1(2)(a) states that a legal easement exists if held for a period equal to an estate in fee simple absolute possession or for a term of absolute years where as an easement for any other period is an equitable easement. Assuming that the agreement made by Hugh and Jamie is written and meets the requirements in the Law f Property (Miscellaneous Provisions) Act 1989, s.2, it is regarded as a valid contract to create a legal easement which can amount to an equitable easement. The case of McManus v Cooke and the principlegenerated in Walsh v Lonsdale illustrates this. It should also be noted as stated by Rogers (2006) that the rule in Wheeldon v Burrows can be valid on a contract to convey a legal estate and will eventually give rise to an equitable easement. Rogers (2006) further states that the LPA (1925) can only create an easement only upon a conveyance hence such an easement will be a legal one.

The servient land has been purchased by Gordon hence the issue to be assessed is whether or not Jamie’s’ easement is legal and if it is binding on Gordon. If it is said to be binding, then Jamie can acquire an injunction to stop Gordon from interfering with his rights. The property was registered when the easement was created hence in order to determine whether or not the easement is binding on Gordon, the principles of registered land will be applied. An equitable easement arose after the Land Registration Act (LRA) 2002 was implemented and after that an easement could not be an overriding interest in its own right. After the act came into force, the only easements that could be overriding interests in their own right were legal easements. Roger (2006) states that legal easements or profits allowed and permitted on or after 13 October 2003 out of a registered title are not regarded as overriding interests because under section 27 (2) (d) of the 2002 their creation amounts to a registrable position. Roger (2006) further states that they can only operate as legal interests after completion of registration. After applying the law to the facts of this case scenario, Jamie may not be viewed as having a legal easement but may be viewed as having an equitable easement to park his car in the car park on the rear end of the delish

The defence Jamie may use in order for the easement to be regarded as legal is that he could argue that he had an overriding interest in accordance with schedule 3, para 2 of the LRA (2002) however this would be not easy to argue as his use of the car park could hardly amount to actual occupation and does not satisfy the requirements for legal interest or profit to be an overriding interest. If the property in question had been unregistered then Gordon would have been bound unless he proved that he had purchased the property in good faith and had been unaware of the existence of the easement. An argument Gordon may use to support his action to stop the easement from being upheld is that the spot where Jamie chooses to park his car is obstructing deliveries. In the case of  London & Blenheim Estates Limited v. Ladbroke Retail Parks Ltd it was held that a right to park a car would not be granted if such rights would leave the servient owner devoid of any sensible use and enjoyment of his land, whether it is for parking purposes or for something else. The test was also used in the Batchelor v Marlowcase. The easement granted to Jamie by Hugh may therefore likely be classed as an equitable easement and it is only binding on Gordon If it is protected by entry of notice on the charges register.

The second issue in this case study is on whether or not the display of the sign is an easement. The criteria used to identify easements was determined and approved in theRe Ellenborough case. According to Dixon (2009), four requirements have to be met and looking at the requirements in the Re Ellenborough case, it may be said that Gordon does not accommodate the dominant tenement and the sign he displays is merely being used to benefit him personally. The case of Moody v Steggles however argues this point, where it was established that affixing a sign on another person’s property could mount to an easement. Looking at the case ofMoody v Steggles, it may be held that although Gordon’s sign relates to his business it accommodates the dominant servient. Gordon may also argue that the sign was affixed when the original owner (Hugh) was still in possession of the property and the case of Pugh v Savagesupports this argument. The sale of the business was that of a quasi dominant tenement so there could be four possibilities in relation to him acquiring an easement and these could be easements of necessity, intended easements, the rule in Wheeldon v Burrows and the Law of Property Act 1925, section 62(Dixon 2009).After application of statutes and case law, Gordon may be allowed to uphold the easement hence can apply to for an injunction to stop Hugh from depriving him of his rights.


The issue in the second part of the case study is on whether or not Ainsley is bound by the restrictive covenant which is for the homestead not to be used as a business that sells food or refreshments. The law being analysed and applied is that of Restrictive covenants and case law will be used for further elaboration as well as to give adequate advice.

According to Dixon (2009) restrictive covenants are promises made by one person to another allowing them or stopping them from doing something on their own land. Dixon (2009), states that a covenant is made between the covenantor and the covenantee where both the burden and the benefit are attached to the benefited and burdened land and pass to future purchasers. According to Rogers (2009), under registered land the protection of the burden of a restrictive covenant that runs with the land of the covenantor is done through placing a notice on the charges register of the title of the servient land. According to Dixon (2009)covenants formed after 1926 are regarded as invalid in relation to the purchaser who acquires the legal estate in the burdened land for value purposes unless they are registered at the Land Charges Registry and this must be done in the correct register which is (D(ii)). Dixon (2009) further states as long as the restrictive covenant is registered then the purchaser in regards to restrictive covenants of an equitable interest or a purchaser of the legal estate is bound by it even if it does not give any value or money’s worth.

After analysis of the law of restrictive covenants under registered land, Ainsley could be bound by the covenant .Ainsley may however argue and would have to prove that she had purchased the property in good faith and had not been made aware of the restrictive covenants and this point is illustrated in the case of Wilkes v Spooner. In regards to this point the case of Austerberry v Corporation of Oldham shows how in common law, Ainsley does not have to endure the burden hence Gordon would have to sue the original owner. This principle however has been criticized and it was noted in Tulk v moxhay thatno intervention would occur in equity to prohibit a purchaser who aquired notice from refusing to acknowledge that there is a restrictive covenant however this did not include positive obligation.

Section 24 of the Law of Property Act (LPA) 1969 provides that actual notice of a previous land charge determines whether or not a future purchaser will be bound by it so that section 198 of the Law of Property Act (LPA) 1925 which states that registration is a form of notice will not be applicable. If Ainsley enters into the contract without actual knowledge of the restrictive covenant the LPA 1969, s.25 may provide some form of compensation in regards to those purchasers disadvantaged by the charge.

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