Easements, Profits and Covenants
What the exam tests
Easements, profits and covenants test creation, characteristics and enforceability. You must distinguish easements from licences and covenants from easements, and apply registration and notice rules.
Core rules
- An easement requires a dominant and servient tenement, accommodation of the dominant land, diversity of ownership or occupation, and a right capable of forming the subject of a grant. It must not amount to exclusive possession.
- Easements may be express, implied (necessity, common intention, prior use), or prescriptive. Profits à prendre give a right to take something from another’s land.
- Restrictive covenants can run with land in equity if they touch and concern the land, the parties intended the burden to run, and the burden is registered or notified. Positive covenants generally do not run at law.
- The benefit of a covenant may run at law or in equity; the burden runs only in equity and only with notice.
Worked example
A sells part of her land to B and covenants that B will not build above two storeys. The covenant is registered against B’s title. B sells to C, who has notice. C is bound in equity because the covenant is restrictive, touches and concerns the land, and was registered; A can obtain an injunction. If the covenant required B to build a fence (positive), C would not be bound at common law without privity.
Traps
Finding an easement where the right excludes the servient owner; forgetting registration of the covenant; assuming positive covenants run with land; confusing a profit with an easement.