Land Law

Session Three
Easements, Profits and Mortgages
 Easements and Profits

• Easements and Profits, collectively known as servitudes, are interests

entitling their owners to exercise certain rights over the land of another.
Servitudes may be acquired by statute, express of implied grant, by
prescription, or by equitable estoppel. See Crabb v Arun District Council
(1975)
 Easements

• Easements may be defined as rights annexed to land entitling its owner

(the dominant owner) to do, or prevent the doing of, something on another
person’s piece of land (the Servient tenement).
• See Crow v Wood 1970, Re Ellenborough park 1956, expansion of
easement, Phipps v Pears 1964, and Grisby v Melville [1974] 1 WLR 80
Third party (an individual or a utility company) has a right to use your property

• Having an easement on your property means that a third party (an

individual or a utility company for example) has a right to use your
property for a particular purpose. This could be passing by foot or with
vehicles over your property, or a right to pass service media for utilities on,
over or under your property.
• Examples of common easements include: rights of way, light, support of a
building and water.
 Types of easement

• Easement appetunent
• Easement by gross
• Easement by necessity – court may be involved if refused to be granted.
• Easement by prescription – allowing somebody to use your property
without agreement.
The cartegories of easements are not closed and new rights have from time
to time been recognized as easements though in general the courts are still
reluctant to extend the cartegories.
 Easement appurtenant

• An easement appurtenant is a specific type of easement where two properties

are linked together as Servient tenement and Dominant tenement estates. There
is a always a dominant tenement and a Servient tenement or estate. The former
benefits from the latter.
• Common examples of appurtenances are driveways, drainage ditches, fences,
and rights of way such as a public or private access to a street across a property
that is landlocked. They can also include a right to light or a right of support.
The process of entering someone's land in called ingress and the process of
exiting someone's land is egress. Easements are part of the Title deed.
• Who maintains this easement? Easement user maintains it.
 Easement by gross (utility easement)

• Party is allowed to use land ( bill boards, powerlines to pass across the
property).
• Future owners have to respect this easement. There is no dominant
tenement.
 Easement by necessity

• An easement by necessity is defined as an “easement created by operation of

law because the easement is indispensable to the reasonable use of nearby
property, such as an easement connecting a parcel of land to a road”.
• An easement by necessity is created when splitting a parcel of land, and one
of the created parcels will no longer have a road to access the property. For
example, if John owns 100 acres of land and grants 20 acres of that land to
his son, Steve, Through a subdivision, that acreage has no road access. Steve
would be able to claim an easement by necessity across Johns’ property to
access the road. The rationale for this is that the law presumes that johns’
transfer intent was not to make Steve’s property unfit for use.
 Easement by prescription

• Easement by prescription occurs where someone uses another's property

for a certain amount of time without permission in a way in which the
owner should be aware of. There is no force, stealth or permission.
• Jurisdictions set the time limits required for someone to achieve a
prescriptive easement which can range from a few years to over twenty.
• It is acquired through open and notorious use of an owner’s land which
is adverse to the owner’s rights, for a continuous and uninterrupted period
of years. A use may be sufficiently continuous for a prescriptive easement
if it is consistent with the needs of the use and shows a continuity of
purpose. See Beebe v. DeMarco, 968 P. 2d 396 - 1998
 Profit à prendre

• A Profit à prendre has been described as a right to take something of legal

value off another person’s land. This is a right to take from the servient
land that is both:
• Capable of ownership; and
• A product of nature.
 Typical profits à prendre

Typical profits à prendre include:

• a profit of piscary which entitles a person to enter another’s land and take
fish, profit in the soil giving the right to take sand, gravel, coal, soil, wood
for fuel, turf or grass or minerals. This also includes a right to graze sheep
or pasture cattle. Rights of hunting are also included.
• Taking water from a stream is not looked as a profit because running
water cannot be privately owned and it is not a thing of legal value. It is an
easement.
 A profit may or may not involve a dominant
tenement

• A profit necessarily involves the Servient tenement but there may or may
not be a dominant tenement as profit can exist in gross. A profit can be a
several profit, where it is granted to an individual, eg shooting and fishing
right. A profit may also be in common ie enjoyed by more than one person.
This may be for instance grazing rights or taking various materials from
the land
 Non-possessory interest

• Profit à prendre is a nonpossessory interest in land which grants the legal

right to enter onto another person's real property (real estate) for the
purpose of taking from its soil, mines and minerals, natural produce or
flora and fauna. The period for prescription according to the law is 30
years.
• A nonpossessory interest is the right to use or restrict the use of another
person's real property or land, or it may occur because of a court order.
• Types of nonpossessory interests include real property or interests (any
right, claim, or privilege an individual has toward land or real property).
 Difference between an easement and a profit

• The main distinction between an easement and a profit is that the latter
entitles its owner to take away something capable of ownership from the
servient land, while the former does not.
• An easement also differs from a profit in that a profit may exist “in gross,”
(i.e. independent of ownership of land or belonging to a person in his own
right, not as annexed to ownership of land) while an easement must always
be appurtenant i.e attached to ownership of particular land.
 Owner of a profit enjoys possessory rights

• Further, the owner of a profit enjoys possessory rights over the servient
tenement and the owner may bring an action of trespass for their
infringement.
• The burden of a profit attaches to land (hence its proprietary status) but the
benefit may be held by any person or indeed any number of persons.
 Easement involves two separate pieces of land

• Easements comprise certain rights which one land owner may exercise or
enjoy over the land of another.
• Every easement involves two separate pieces of land.
• An easement is a proprietary interest in land itself and it is not merely
personal to the persons who originally created it.
• An easement confers a benefit and a burden on the land itself so that it may
be enjoyed or suffered by any subsequent owner of the dominant or
servient land.
 Difference between a licence and an easement

• An easement differs from a licence in that a licence is not a proprietary

interest in land and in that an easement is always appurtenant to land.
• A lease, like an easement, is a proprietary interest in land. However, the
distinction between the two is that an easement does not give its owner any
possessory right over the land of another
 Easement may be either positive or negative

• An easement may be either positive or negative. See the case of Phipps v

Pears (1964) 2 All ER 35 [CA]
• A positive easement is the right to do something on the land of another, for
example a right of way, whereas a negative easement imposes a restriction
on the servient owner such as with the right of light or air the servient
owner may not build so as to unreasonably obstruct the flow of light.
• Similarly, a right of support imposes a restriction that a neighbor’s
property will not be disturbed.
 The Essential Characteristics of an Easemen t

• There are four essentials for an easement to exist.

• 1. There Must be a Dominant and Servient Tenement. An easement
cannot exist unless and until there is both a dominant and servient
tenement in separate ownership.
• (A privilege to a person with no dominant land is a licence).
• 2. The Dominant and Servient Tenement must not be Owned and
Occupied by The Same Person.
 The Essential Characteristics of an Easement
cont’d.

• 3. The Easement must Accommodate the Dominant Tenement.

Easements are rights which attach to land and not to persons.
• 4. The Easement must be Capable of Forming the Subject Matter of
the Grant. An easement must be capable of being expressly conveyed by
deed; there must be a capable grantor and grantee; the right must be
sufficiently definite, and the right must be within the general nature of
rights capable of existing as easements
 Dominant tenement

• Dominant tenement (also called dominant estate) refers to property that

uses an easement over another property. For example, if lot A had an
easement over lot B to access water lines underground, lot A would be the
dominant tenement and lot B would be the servient tenement.
• Courts are reluctant to recognize an easement which gives the dominant
tenement owner exclusive occupancy of the servient tenement.
 Servient estate

• A servient estate (or servient premises or servient tenement) is a parcel

of land that is subject to an easement. The easement may be an easement in
gross, an easement that benefits an individual or other entity, or it may be
an easement appurtenant, an easement that benefits another parcel of land.
• For an easement appurtenant, the parcel of land that benefits from an
easement over the servient estate is called the dominant estate (or
dominant premises or dominant tenement).
 Express Grant or Reservation

• This can occur where land is owned by a potential servient owner and he
then sells or leases a piece of that land to another, he may include in that
sale or lease a grant of an easement to the purchaser. E
• Easements may also be granted by an Act of Parliament for example
giving rights in respect of cables, pipes, sewers etc.
 Express Grant or Reservation

• An easement is expressly granted when the owner of the potential servient

tenement grants or gives an easement over that land to the owner of what
will be the dominant tenement.
• Under express reservation, the owner of the potential dominant tenement
keeps i.e. reserves an easement over that land.
 Presumed Grant or Prescription

• A presumed grant may be based on the doctrine of prescription at common

law or on the doctrine of a lost modern grant or may arise under the
Prescription Act, 1832 and in each of these cases the right is founded on
long undisturbed possession or use
 Mortgages - Introduction

• Mortgage is a legal agreement by which a bank, building society, etc. lends

money at interest in exchange for taking title of the debtor's property, with
the condition that the conveyance of title becomes void upon the payment
of the debt. A mortgage is also known as “dead pledge”
• In other words, it is a conveyance of property or an interest in property,
either personal or real, as security for the performance of an obligation.
 The law of mortgages.

• Like many other concepts in land law, a mortgage originates in contract.

• The loan is taken against the value of say your home until it’s paid off. If you
can’t keep up repayments, the mortgagee can repossess i.e. take back your home
or indeed any property that you mortgaged and sell it so that they can get their
money back.
• It is possible to use a chose in action to secure a loan. Examples are IP rights and
shares in a company. Shares must be transferred to the mortgagee and an
agreement made that they will retransferred back when repayment is made. An
equitable mortgage can also be obtained through use of company shares but in
this case shares are not transferred but only the certificate of shares is deposited
with the mortgagee.
 Theories of mortgages

• Two theories of mortgages exist:

• 1. The common law emphasizes the conveyance element of the mortgage.
• The mortgagor (the borrower) deeds the property to the mortgagee (the
lender) and the deed contains a clause which renders the conveyance void
if the obligation secured is performed as stipulated. This known as a legal
mortgage.
 Equity mortgage or lien theory

• 2. The equity mortgage or lien theory emphasizes the security element

of the mortgage. A mortgagee who receives a mere equitable interest in the
land is said to have an equitable mortgage
• The title to the property remains in the mortgagor: the mortgage has a lien
on the property for the performance of the obligation.
 Mortgage borrowers

• Mortgage borrowers can be individuals mortgaging their home or they can

be businesses mortgaging commercial property (for example, their own
business premises, residential property let to tenants, or an investment
portfolio).
• The lender will typically be a financial institution, such as a bank, credit
union or building society, depending on the country concerned, and the
loan arrangements can be made either directly or indirectly through
intermediaries.
 Further borrowing possible

• When a person has borrowed money by mortgaging property, he may still

be able to borrow further sums if the amount of the charge is not equal to
the full charge of the property and there seems to be adequate security for
further loans.
• The only limit to this proposition is to find a lender is prepared to be a
second of third lender.
 Features of mortgage loans

• Features of mortgage loans such as the size of the loan, maturity of the
loan, interest rate, method of paying off the loan, and other characteristics
can vary considerably.
• The lender's rights over the secured property take priority over the
borrower's other creditors, which means that if the borrower
becomes bankrupt or insolvent, the other creditors will only be repaid the
debts owed to them from a sale of the secured property if the mortgage
lender is repaid in full first.
 Foreclosure of the mortgage

• On default the mortgagee may foreclose the mortgage.

• If on foreclosure, the sale of the property sells for more than the debt,
interest and costs, the overplus goes to the mortgagor or a subsequent
mortgagee.
• If the property does not sell for enough to pay the debt, interest and costs
the mortgagee is entitled to a judgment for unpaid balance of the debt.
 Equity of redemption

• The equity of redemption is the mortgagor’s right of ownership of the

property subject to the mortgage, and is an interest in land which can be
dealt with like any other interest in land.
• See Re Wells [1933] CH 29 at P. 52 and Hayton, D. supra note 8, at page
463.
• The proprietary nature of a mortgage brings with it the intervention and
attention of equity, and this can result in a conflict between the mortgage
as an interest in land and the mortgage as a creation of a contract.
 Background to equity of redemption

• Before the law property act of 1925, the usual method for creating a
mortgage was to convey the land to the mortgagee. If the mortgagor failed
to repay the loan at a fixed date, the mortgage would take the permanently.
This caused a lot of hard ship.
• Mortgagors had no relief under common law. As a result equity intervened
and provided the right to take back the property taken as security.
• This doctrine encapsulates his residual rights in the property.
 Mortgagee's remedies on default

The mortgagee’s remedies on default by the mortgagor are:

1. Sue for the debt i.e. the amount due on the mortgagors agreement to pay the principal plus interest.
2. Take possession – issues of rentals and other income from the property have to be taken into
consideration (see white v city of London brewery co. 1889. no court order needed under common
law.
3. Foreclose – seek a court order to extinguish the mortgagors equitable rights. There is foreclosure
nisi and foreclosure absolute.
4. Sell the land - Three months notice needs to be given to the borrower. Mortgagee cannot purchase
the land himself. It has to be by public auction. See Cuckmere brick co ltd v mutual finance (1971)
2 All ER 633
5. Appointment of a receiver and to take possession but on terms of strict account.
There is no right to take possession for equitable mortgages. It is only allowed in legal mortgages.
 Mortgagee does not need a court order

• A mortgagee does not usually need a court order to execute a sale.

• There is a statutory power of sale under the Law of Property and
Conveyancing Act of 1881 - 1911.
• A sale has to be a true sale. A colourable sale may be set aside by court. A
mortgagee must sell as if he was selling his own property.
• He is under a legal duty to get the best available price. Where a mortgagee
exercises his right of sale, he must account to the mortgagor the proceeds
of sale.
 Class exercise

1. Define an easement taking into account its main features and distinguish
it from a profit a prendre.
2. How did the early common law deal with mortgages? What was the
intervention by equity?
3. Outline the remedies available to a mortgagee of a legal mortgage
4. How may an equitable mortgage be created?
Cases

LACKSON MWABI MWANZA PLAINTIFF V SANGWA SIMPASA

1ST DEFENDANT CHISHA LAWRENCE SIMPASA 2ND DEFENDANT