Easements and Covenants are the chief mechanisms for passing rights and obligations – for example rights of way over another’s land or to pass on enforceable obligations for example, who is responsible for maintaining boundaries.
The general rule with covenants is that they must be expressed in the negative– for example not to create a nuisance. A Covenant expresses to be positive – for example to construct or maintain a fence will not “run with the land” in other words it will bind the original party who constructed to build the fence but there may be difficulty in enforcing against successors in title. In order to ensure that positive covenants can be enforced it is important to check that there is a continuous chain renewing the obligation upon each change of ownership.
In the case of easements it is necessary that there be two or more separate pieces of land one of which has the benefit of an obligation (known by lawyers as the dominant tenement) and the other carrying the burden (known as the servient tenement). Examples include the grant of a right of way for the owner of one piece of land – over an adjoining piece of land. Easements can arise in a variety of ways expressly (by a legal deed), prescriptively (by accustomed practise for a period of more than 12 years) or by necessity. Easements arising from prescription and even more those by necessity should be treated with considerable caution.