Easements and Covenants affect land and are a means of granting rights or imposing obligations over neighbouring land. It is necessary when buying or seeking to develop land to be clear as to what easements or covenants bind or benefit your land such as, for example, rights of way over a private road.
Usually a covenant will be recorded on the register of title of the burdened land or details of it will be set out in a separate document that is referred to in the title.
Easements are usually granted by way of deed or can sometimes be acquired by prescription or are easements of necessity. Generally, with easements the land with the burden and the benefit of the easement should have the easement set out in the register of title. However, the register of title will not always reveal easements that affect land as there are sometimes easements not granted by deed but acquired by long user. These are easements acquired by prescription and these prescriptive rights can range from rights of way to easements to park.
If your seller has acquired an easement by long user but never applied to the Land Registry to register the benefit of it you should obtain a statutory declaration from your seller to that effect should your right ever be challenged by the owner of the burdened land.
In order to bind land covenants need to be expressed in the negative– for example not to use the property for the sale of alcohol. Generally, if a covenant is expressed in the positive whereby for example it imposes an obligation to build a wall on the land then it may well not bind the land if it has been sold on. This is expressed as a covenant that does not “run with the land” and will only bind the original parties to the sale but there may be difficulty in enforcing it against successors in title.
Should the owner of the servient land prevent you exercising your easement you can seek an injunction against them to enforce your right. When seeking an injunction it is important that you act quickly.
This is a complex area of the law and legal advice should be sought to assess whether the easement or covenant can be enforced and what steps to take to prevent any wrongful interference with your easement.
Quinn & Co have experience in this area of law and if you wish to discuss your case and see how we can help you please contact Joseph Quinn on 01392 248858 or email me at firstname.lastname@example.org
This article does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.