Part 3 With Me Episode 3:

Hello and Welcome to the Part3 with me podcast, The show that helps part 3 architecture students jump start into their careers as qualified architects. I am your host Maria Skoutari and this week we will be talking about Easements, Covenants and Right.

A basic knowledge of easements and rights is essential, particularly in relation to site investigation. There are a number of easements and rights relating to sites but the most likely to effect a development are rights of light, rights of way and party wall rights, all are common law rights and enforceable by law. Let's start by defining what easements actually are. Easements can be defined as a right or privilege, which one owner of land enjoys over the land of another.

The most common conditions for an easement to be identified are:
• There must be a dominant and servient tenement (meaning a right benefiting a piece of land - the dominant that is enjoyed over land owned by someone else - the servient)
• The dominant and servient owners must be different persons
• The easement must accommodate the dominant tenement
• The right must lie in grant I.e can be defined, capable of being transferred by deed An easement differs from a license in that a license allows action to be taken under a set of conditions and can be withdrawn if there is a breach of those conditions or by agreement of the parties. An easement exists in the land not the individual and passes from one owner to another. There can be positive and negative easements, although there is no consequence in the distinction. A positive easement is one which enables the dominant owner to act upon the servient tenement, e.g walk or drive along a right of way. A negative easement allows the dominant owner to prevent the servient owner from doing something on his land, e.g. a right of light which restricts the servient owner’s ability to build. When it comes to covenants - a covenant is a promise made by a single party to either engage or refrain from conduct and is contained in a deed to land. The land may be subject to a covenant that affects or limits its use. The covenant may give a landowner some say over what is permissible on a neighbouring property - that is the benefit of a covenant. Whereas an easement provides a right for using a property of another without possessing it but can only use the land for that specific right it does not give the right of ‘possession’ to the holder of the easement. A covenant binds future title holders of a property/land to the covenant whereas an easement is the right to anything related to the property or prevent someone else from doing something with the property of another. Easements can also be called as a person’s interest in another one’s land for some specific purpose - a covenant just concerns the appropriate use of the land, unlike covenants, easements can be obtained through long usage. When easements inflict a certain property right, a covenant calls for benefit and burden e.g in real estate easements offer an interest to the land/property and covenants are contractual obligations which are not binding upon future owners. Restrictive covenants can be a blinding obligation that restricts and owner of servient land (burdened land) in his use and enjoyment of that land. The covenant must be made for the benefit of the dominant land belonging to the covenantee, being the person who may enforce the covenant. Typical examples of covenants can be not to build above a given height or in a given place, or covenants restricting the user of the land to given purposes, e.g no trade or business. Although in some extent superseded by planning controls, restrictive covenants still have a valuable role to play, particularly in preserving the character of housing estates and other homogenous developments. The essentials of a restrictive covenant are: 1 That it is in substance negative: a covenant that requires the person burdened to spend money is not negative (e.g. a covenant to fence or repair is not negative). 2 That it is made between the covenantor (the person making the promise, whose land is burdened) and the covenantee (the person who can enforce the promise) for the benefit of the covenantee’s land. 3 That the parties intend the burden of the covenant to run with the covenantor’s land so as to bind not only the covenantor but also his successors in title. So, all subsequent owners of the burdened land can be prevented from carrying out the prohibited use. A restrictive convenant is an equitable interest in land and therefore requires registration as a land charge in unregistered land (unless the covenant is contained in a lease, for which different rules apply). If the burdened land is registered, a restrictive covenant is protected by registering a Notice (usually an Agreed Notice) against the servient land on the Register ofTitle. These matters will usually be dealt with by the solicitor etc. at the time the covenant was first created. If a restrictive covenant complies with certain requirements and is properly protected by registration, it will bind the covenantor’s successors in title. The usual remedy for infringement of a restrictive covenant is an injunction to restrain further breaches, but the court may give damages either in addition to or in lieu of an injunction. The rules on the passing of the benefit of restrictive covenants is that a successor in ownership to the land benefited will be able to enforce the covenant against the person now owning the land burdened. Therefore, restrictive covenants affect both burdened and benefited land long after they were first created. There is in consequence a procedure for their removal. Architects should request that clients obtain confirmation that there are no restrictive covenants applying to a site that could affect the proposed design and use of a building or indeed whether a building can be constructed at all. An architect must proceed with caution as, e.g. a simple covenant ‘not to carry on any trade or business’ on the land may effectively destroy a development. Although the point has never been tested in court, an architect who continued to act for a client in designing a building that was known by both of them to contravene a restrictive covenant could be liable jointly with his client for the tort of conspiracy, i.e. of agreeing to do an unlawful act. Circling back to to easements, there are four ways in which they can be obtained: • By Act of Parliament - public rights • By express reservation or grant, easement relates to the land and is transferable with the land (meaning express by grant is one that has been written down usually in a deed made at the time of sale of the property) • By implied reservation or grant - rarely used and can be difficult to enforce (meaning the easement is implied by law and not specified in a deed - usually arise when a landowner sells property/land) • By prescription e.g. uninterrupted use over a period of time determined by common law. This is covered by the Prescription Act 1832 which introduced the period of 20 years uninterrupted use. It is probably the most common use encountered by architects in site investigations, this information can be contained within land registry documents but a prescribed right may have been established since the last change of ownership, in these circumstances the enjoyment of a right has to be demonstrated. Party Walls are considered easements governed by the Party Wall Act 1996. Looking more closely now to the easement/rights examples: Typical rights are considered Rights of Way, rights of light, right of support, the right to draw water, right for underground services to pass beneath the land of a neighbouring property and so on.

There are four ways in which an owner can prevent the acquisition of rights by another, this can be of particular importance if the acquisition (purchase) of the right could significantly reduce the land value:
• By creating a permanent obstruction on the land
• By creating a temporary obstruction annually on the land
• By purchase of dominant land wishing to acquire a right
• By grant of a conditional licence ie. Permission granted but not a right. There is no obligation on the servient land owner to maintain rights of way but equally they may not erect obstructions to an established right of way.

Rights can be extinguished in any of one of four ways:
• By Act of Parliament
• By express or implied release of the right by the dominant party
• By purchase of the land by the servient owner or vice versa I.e bringing both areas of land into one ownership
• By default e.g. a significant change of use by the dominant land Rights of way can be either public or private. It may be diverted provided that the points of entry and exit remain the same and that the diversion is not unreasonable. Disputes over diversions are usually determined in court but may also in the case of Public Rights of Way be determined by the Planning Authority. Rights of Way can be closed for maintenance provided that notice is given and the action is not unreasonable. A Right of Light is established by the size, location and height of windows overlooking an adjacent site. This right allows the owner to use the light received through that window for established purposes, it does not give the owner the right to a view. A right of Light can also be acquired by a greenhouse, solar panels, etc. The prescription to a right of light can be prevented by the erection of an obstruction within the twenty year period alternatively under the Rights of Light Act 1959 is is possible to establish a notional obstruction which has to be lodged with the Local Authority and the Land Registry. Whilst the adjoining owner will be informed and has the right to object it is unusual for this objection to succeed. Another common right is Wayleaves - this is a temporary agreement unlike easements, and is typically used by utility companies to gain a right of way under, across or over land for traffic of goods, pipelines or overhead cables. Granted by statute for public utilities and subject to the payment of rent or charges by the relevant authority.

If you would like to get in contact with me please feel free to email me on the address provided in the show notes. Thank you for listening, this is an educational show aimed at supporting the future generation of architects. The information, opinions, and recommendations presented in this Podcast are for general information only and any reliance on the information provided in this Podcast is done at your own risk. Please join me next week, for some more Part 3 with me time.