Drafting Covenants, Easements and Special Conditions
This domain tests drafting of rights and obligations that run with land: covenants, easements, and the special conditions that tailor the contract.
Freehold covenants
- The burden of a positive covenant does not run at law (Austerberry) and only a restrictive covenant passes in equity, where the successor has notice, the covenant touches and concerns the land, and the benefit was intended to run (Tulk v Moxhay).
- The benefit runs at law under s.78 LPA 1925 (deemed annexation) and in equity by annexation, assignment or a scheme of development.
- Positive obligations are secured by indemnity covenants, estate rentcharges or a leasehold structure.
Easements
- The four characteristics (Re Ellenborough Park): dominant and servient tenements, diversity of ownership, accommodation of the dominant land, and a right capable of forming the subject matter of a grant.
- Creation: express grant or reservation by deed, implied (necessity, common intention, Wheeldon v Burrows), or by prescription at common law, lost modern grant or the Prescription Act 1832.
- An express easement must be registered to bind a purchaser; an implied or prescriptive easement may override (Sch 3 para 3 LRA 2002) if obvious on inspection.
- Drafting: route and plan, width, maintenance shares, obstruction, parking, and whether the right is exclusive, which may make it a lease.
Special conditions
Amend the Standard Conditions expressly, state the order of precedence, and keep terms fair for consumers. Typical subjects: sale subject to disclosed incumbrances, retention of land, overage, VAT and limits on liability for misdescription.
Worked example
A seller retains a plot and grants a right of way over a shared drive. The transfer should fix the route by plan, the width, a fair proportion of maintenance, and a bar on obstruction; the grant must then be completed by registration so a later purchaser of the servient land is bound under s.29 LRA 2002.
Traps
- Drafting a positive covenant purporting to bind successors without an indemnity or rentcharge mechanism.
- Failing to register an express easement so that it fails against a purchaser for value.
- Relying on s.62 LPA 1925 where there was no diversity of ownership before the transfer.