21

The freehold owner of a farm (the seller) sells a field containing a barn forming part of the
farm (‘the Property’) to a buyer. The transfer to the buyer contains the following:

The Buyer covenants with the Seller to repair and maintain the barn forming part of the
Property.

Which of the following statements best describes the right created by the seller and the
buyer?

A. The positive covenant is a legal interest as it has been created by deed.

B. The restrictive covenant is an equitable interest although it has been created by deed.

C. The positive covenant is an equitable interest although it has been created by deed.

D. The restrictive covenant is a legal interest as it has been created by deed.

E. This creates an easement in favour of the buyer to access the barn forming part of the
Property.

Answer

The correct option is C. A covenant is not capable of being legal (s 1(3) LPA 1925). Creation
by deed does not alter this. Options A and D are, therefore, wrong.

The covenant in question is positive as it will require effort or expenditure to perform it. Option
B is, therefore, wrong.

Option E is wrong as a covenant has clearly been created, not an easement.

22

A barrister is the freehold owner of two houses. He lives in one house (the ‘Retained Land’).
He sells the other house (‘the Property’) to an architect. The transfer contains the following
clause:

For the benefit and protection of the Retained Land the Buyer and his successors in title
covenant with the Seller and his successors in title to only use the Property as a private
dwelling house.

The architect sells the Property to a doctor. The barrister sells the Retained Land to a vet. The
doctor sells the Property to a friend.

Which of the following answer best describes the parties to the various transactions?
A. The barrister is the original covenantee and the vet owns the land burdened by the
covenant.

B. The barrister is the original covenantor and the friend owns the land burdened by the
covenant.

C. The architect is the original covenantee and the friend owns the land which benefits from
the covenant.

D. The architect is the original covenantor and the vet owns the land which benefits from the
covenant.

E. The architect is the original covenantor and the barrister owns the land which benefits from
the covenant.

Answer

The correct option is D.

The architect is the original covenantor. Option C is, therefore, wrong.

The friend now owns the land burdened by the covenant – the Property.

The original covenantee was the barrister. Option B is, therefore, wrong.

The vet now owns the land that benefits from the covenant. Option A is, therefore, wrong.

Option E is wrong as, although the architect is the original covenantor, the barrister no longer
owns the land benefitting from the covenant.

23

A market research analyst is the freehold owner of two houses. The analyst sells one house
(‘the Property’) to an occupational therapist. The transfer to the occupational therapist
contained the following clause:

The Buyer and her successors in title covenant with the Seller and his successors in title to
use the Property only as a private dwelling house.

Elsewhere in the transfer, the other house is identified as the seller’s ‘Retained Land’.

The occupational therapist has sold the Property to a recruitment consultant. The market
research analyst has sold his house to a teacher. The recruitment consultant has started
running a business from the Property in breach of the covenant.
Which of the following answers best describes the basis upon which the teacher has the
benefit of the covenant?

A. There has been an express assignment of the benefit of the covenant to the teacher.

B. There is statutory annexation as the land to be benefited is identified in the transfer.

C. The benefit passes to the teacher at common law as the criteria are met.

D. There is express annexation as words of annexation have been used.

E. There is a mutual benefit and burden enabling the teacher to enforce the covenant.

Answer

The correct option is B.

There is nothing in the facts to suggest that there has been express assignment. Option A is
wrong.

There is no express annexation as words of annexation have not been used and the land to
benefit from the covenant is not identified in the clause creating the covenant. Option D is
wrong.

Option C is accurate as the benefit will have passed to the teacher at common law. However,
the covenant is restrictive and, therefore, the burden will only pass in equity. In order for the
teacher to pursue a claim, the teacher must show that benefit of the covenant has passed to
her in equity. Option C is, therefore, not the best answer.

There is nothing on the facts to suggest a mutual benefit and burden. This only applies to
positive covenants and here the covenant is restrictive. Option E is, therefore, wrong.

For these reasons, the only way in which the benefit of the covenant can pass to the teacher
is by way of statutory annexation.

24

In 1989, a man purchased a freehold property consisting of a farmhouse and outbuildings

including a large separate barn (‘the Barn’). The Barn has its own access to the main road,
but the man has always used a track (‘the Track’) running past the main house to access the
Barn. He prefers the Track as it avoids a dangerous right-hand turn. Last year, the man sold
the Barn to a woman. The transfer included an express right over the main point of access but
made no mention of the Track.
Which of the following answers best describes how an easement over the Track has been
created?

A. This is an easement of necessity which allows the woman to access the Barn.
B. This is a common intention easement and the woman can only fulfil the purpose with the
easement.
C. The easement is created by Wheeldon v Burrows as a quasi-easement in use at the time
of the sale.
D. The easement was expressly created in the transfer to the woman.
E. The easement was created by prescription as it has been used for over 20 years.

Answer
The correct option is C.

This cannot be an easement of necessity as there is an alternative means of access and,

therefore, the Barn is not landlocked. Option A is, therefore, wrong.

There is no indication of a common purpose or intention in the facts, so option B is wrong.

The transfer to the woman contained an express grant only in relation to the main point of
access, not the Track. Option D is, therefore, wrong.

This cannot be an easement by prescription as, although the use started in 1989, it could not
become an easement until there was a separate dominant and servient owner. This only
happened when the Barn was sold last year. Option E is, therefore, wrong.

The man exercised a quasi-easement over his own land. On the transfer to the woman, this
became a legal easement on the basis that the easement was clearly continuous and
apparent, necessary for the reasonable enjoyment of the land (to avoid the busy junction) and
in use at the time of the sale. Option C is, therefore, correct.

25

A freehold owner granted a 25-year lease of their property (‘the Property’). Five years after
the lease was created, the freehold owner gave informal permission for the tenant to erect a
sign upon the freehold owner’s adjoining land advertising the tenant’s business. Last month,
when the lease came to an end, the tenant purchased the freehold to the Property. The
transfer made no mention of the sign.

Which of the following answers best describes how an easement in relation to the sign has
been created?
A. The easement was created by s 62 LPA 1925 as an existing privilege upon the transfer of
the freehold to the tenant.
B. The easement was expressly created on the transfer of the freehold to the tenant.
C. This is an easement of necessity which allows the tenant to erect a sign.
D. The easement was created by prescription as it has been used for over 20 years.
E. The right is not capable of existing as an easement as it does not accommodate the
dominant tenement.

Answer
The correct option is A.

The easement in relation to the sign was created by implication by s 62 LPA 1925. There was
an existing privilege (the freehold owner’s informal permission to erect the sign), there was
diversity of occupation (the freehold owner owning the servient land and the tenant occupying
the Property) and there was a conveyance (the transfer of the freehold to the tenant). The
effect of the conveyance is to create a legal easement in relation to the sign.

There is no mention of the easement in the transfer of the Property. Option B is, therefore,
wrong.

Although the easement has been exercised for over 20 years, most of this period was whilst
the Property was let. A prescriptive right can only be created as between two freehold owners.
Option D is, therefore, wrong.

It is hard to consider any circumstances in which an easement relating to a sign could be an

easement of necessity. Option C is, therefore, wrong.

Option E is correct in relation to the legal principle but does not answer the question asked
and is, therefore, not the best answer.