Clause in deed of easement

Dontlookback
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Clause in deed of easement

Post by Dontlookback » Sun Aug 11, 2019 4:39 pm

Hi everyone

We in the process of selling an easement across part of our land for vehicular use, it seems to me that the deed that has been written is quite straight forward.

However the other sides solicitor wishes to have this clause put in to the deed.

(c) that the Grantor shall not dispose of the Servient Land or any part thereof without procuring from the disponee at its own cost and delivering to the Grantee a covenant executed as a deed with the Grantee in a form reasonably acceptable to the Grantee (who shall act reasonably and expeditiously in considering the same) to observe and perform the obligations of the Grantor under this deed (including this provision) unless the Grantee shall consent in writing to the omission of such a deed of covenant.

If I am right it is basically saying that if I sold the land I would have to get to new purchaser to sign something to say that they would continue/obey they covenants.

Am I right? and is it something that I should accept?

If I am correct could I not add something to this clause to make it reciprocal ? as it seems very one sided.

IdefixUK
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Re: Clause in deed of easement

Post by IdefixUK » Sun Aug 11, 2019 6:48 pm

Hi,
What is the wording of the easement ( keep addresses and names out)?
Do any of these "obligations "involve you in spending money?

Regards

Dontlookback
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Re: Clause in deed of easement

Post by Dontlookback » Sun Aug 11, 2019 7:14 pm

This is the draft easement as it stands.

Its gone a bit strange when I copied and pasted it.

1. In consideration of the sum of receipt of which is hereby acknowledged and

the Grantees’ agreement to comply with the covenants hereinafter contained, the Grantor

as owner of the land described in the First Schedule ("the Servient Land") grants with full title guarantee to The

Grantee the rights set out in the Second Schedule ("the Rights") in respect of the land

described in the Third Schedule ("the Dominant Land") TO HOLD the Rights to the

Grantee in fee simple to the intent that such Rights shall be appurtenant to and for the

benefit of the Dominant Land


2. The Right is are not granted exclusively and is granted in common with the Grantor and other
3.
persons lawfully entitled to exercise like rights


4.2. No persons shall be entitled to use the said Rights except (a) the actual owners and/or

occupiers for the time being of the Dominant Land or any part thereof (b) persons

actually employed on the Dominant Land by any such occupiers and (c) persons having

bona fide and lawful business with any such occupiers or visiting them by their actual

invitation for a lawful purpose







5.3. Nothing in this Deed authorises the Rights to be exercised in such a way as to interfere

with the use of the Grantor's adjoining or neighbouring land or the doing of any act which

may be a nuisance or annoyance to the owners of the Servient Land or their successors in

title or their servants’ agents invitees and licensees


6.4. The Grantee covenants not to obstruct the Servient Land or deposit any waste, rubbish,

soil or other material including water runoff on any part of the Grantors property Servient Land or

interfere with, or disturb the exercise of the same rights or similar Rights by any other

person authorised by the Grantor


7.5. The Grantee covenants not to cause any damage to the Grantors Property Servient Land, or to any

property of the owners or occupiers of the Grantors Property Servient Land, and shall as soon as

possible make good any damage caused to the Grantors reasonable satisfaction and pay

full compensation to the grantor in respect of any damage caused that is not made good

and any loss caused to the Grantor due to such damage


8.6. The Grantee covenants to pay on written demand a fair proportion of the

cost of maintaining, repairing and renewing of the Servient Land shown coloured green only on the plan attached as determined by the

Grantor and the proportion being determined in case of dispute by the Grantors surveyor

7. The Grantor hereby covenants with the Grantee and its successors in title so as to bind the Grantor and the owners and occupiers of the Servient Land for the benefit of the Dominant Land and every part thereof:-
(a) to maintain the Servient Land coloured green on the plan attached in a good repair and condition subject to a fair and reasonable contribution from Grantee towards the costs of maintaining repairing and renewing the said land

(b) not to obstruct the Servient Land in any way

(c) that the Grantor shall not dispose of the Servient Land or any part thereof without procuring from the disponee at its own cost and delivering to the Grantee a covenant executed as a deed with the Grantee in a form reasonably acceptable to the Grantee (who shall act reasonably and expeditiously in considering the same) to observe and perform the obligations of the Grantor under this deed (including this provision) unless the Grantee shall consent in writing to the omission of such a deed of covenant.

(c) not to do anything or allow anything to be done on the Servient Land that may interfere with or damage the Service Media or interfere with, impede or obstruct the Grantee's access to or use of them.


9.8. It is agreed and acknowledged that the boundaries shown with an inward facing red “T” mark on the attached plan belong to and are within the ownership of the Dominant Land. The Grantee covenants to take full responsibility for the boundaries shown with an

inward facing “T” mark on the attached plan.


10.9. The right of way granted shall not be exercisable during any period during which those enjoying it are in breach of any covenants




11.10. The Grantee shall pay all the Grantor's proper and reasonable legal costs in respect of the
negotiations for and the settlement and completion of this Deed




12. The parties hereto apply to the Registrar at HM Land Registry to include the following restriction on the proprietorship register of the title to the Servient Land:
“No disposition of the registered estate by the proprietor of the registered estate is to be registered without a certificate signed by a conveyancer that the provisions of sub-clause 8. (c) in the Deed of Easement dated 2019 and made between (1) and (2) have been complied with.”

IdefixUK
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Re: Clause in deed of easement

Post by IdefixUK » Sun Aug 11, 2019 9:28 pm

I'm no expert but I rather understood that an easement should not cause the servient owner (you) to expend any money. This seems to be an attempt to mix an easement with a covenant which will involve expenditure on the part of the servient owner, and the clause you asked about is an attempt to get around the fact that positive covenants do not "run with the land" and generally are not enforceable against the next owners of your land.
I'm also suspicious of the wording in that it includes agreement that you don't own certain boundary features, this may (will) allow the dominant owner to alter the point of access to the land if the route of the ROW runs alongside that boundary.
The wording doesn't qualify what vehicles/animals/on foot can use the right, and for what purpose this might be. (Eg access to single dwelling house).

Have you passed this to a solicitor or are you trying to "do it yourself" ( not advised). Don't sign anything without getting proper advice on this.

Vehicular, infact any, rights of way can be worth serious money.

Hopefully the plan has some measurements regarding the width of the ROW.
What is the ROW land now? Is it a road/a garden or what? How far away from your dwelling is it going to be. Have you considered that your property will be worth somewhat less if you go ahead with this, and perhaps will be harder to sell.If you have a mortgage on your property the mortgage company will need to know and approve what's going on.

What is the dominant land now, is it big enough to build several houses on...or a factory or slaughter house?

Is it the case that "service media" already cross your land? The wording doesn't seem to give rights to install it if it is not already there.

Perhaps a schematic diagram would help readers understand more fully.

Regards

mr sheen
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Re: Clause in deed of easement

Post by mr sheen » Sun Aug 11, 2019 9:36 pm

Presumably you have a specialist lawyer dealing with this matter so get your money worth and get advice .....
(if not get one! I would even be getting the buyer to pay my legal costs for the benefit of an easement on my land!)

Personally, when selling anything, I would not be happy with any clause that may require me to expend more money later for the benefit of the buyer. For me.....the sale of a benefit is a one-off event for recompense. Ie they gain something and I lose something but get paid for that loss. A clause seeking to reopen the matter later would not be acceptable to me and I would instruct my lawyers accordingly....and if the buyers choose not to proceed with the purchase of the easement then that is their choice...no skin off my nose!

Dontlookback
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Re: Clause in deed of easement

Post by Dontlookback » Sun Aug 11, 2019 9:47 pm

Hi Thanks for your response.

In my haste I missed this bit. The land is an access way at the moment and is quite heavily burdened so I think another right will not effect it that much. We are going through a solicitor but I am trying to make sense of it in my own head.

THE FIRST SCHEDULE

The Servient Land

The freehold property known as land at shown for the purpose of identification only coloured green and coloured blue on the plan and registered at HM Land Registry under title number





THE SECOND SCHEDULE

The Rights

1. The right for the Grantee their successors in title the owners and occupiers for the time being of the Dominant Land in favour of the Dominant Land at all times hereafter by day or night with or without vehicles to pass and repass along and over the Servient Land shown coloured green only on the plan attached for all purposes in connection with the use and enjoyment of the Dominant Land as a single domestic dwelling but not for any other purpose whatsoever and without prejudice to the generality hereof not to park on the Servient Land or permit those entitled to use the said Right to do so

2. The right for the Grantee their successors in title the owners and occupiers for the time being of the Dominant Land in favour of the Dominant Land on giving prior reasonable notice (except in an emergency when no such notice shall be required) to enter onto the verge adjoining the Servient Land shown coloured blue on the attached plan for the purpose of maintaining, repairing, renewing and replacing the boundaries referred to at clause 8 above.

3. The right for the Grantee their successors in title the owners and occupiers for the time being of the Dominant Land in favour of the Dominant Land at all times hereafter to

(a) Enter the Servient Land with or without vehicles, plant and equipment (at the Grantee's expense and in a proper and workmanlike manner) to retain, inspect, maintain, repair, alter, renew, replace and remove any service media meaning pipes, lines, drains, wires, cables and other equipment or other conducting media (“Service Media”) serving the Dominant Land.

(b) to use the Service Media serving the Dominant Land, which passes through the Servient Land.









THE THIRD SCHEDULE

The Dominant Land

The freehold property being situate and known as and shown for the purpose of identification only

edged red on the plan annexed hereto and registered at HM Land Registry part of which is

registered under title number and the other part which is wholly contained within

title number

MacadamB53
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Re: Clause in deed of easement

Post by MacadamB53 » Sun Aug 11, 2019 9:48 pm

mr sheen wrote:
Sun Aug 11, 2019 9:36 pm
Presumably you have a specialist lawyer dealing with this matter so get your money worth and get advice .....
(if not get one! I would even be getting the buyer to pay my legal costs for the benefit of an easement on my land!)

Personally, when selling anything, I would not be happy with any clause that may require me to expend more money later for the benefit of the buyer. For me.....the sale of a benefit is a one-off event for recompense. Ie they gain something and I lose something but get paid for that loss. A clause seeking to reopen the matter later would not be acceptable to me and I would instruct my lawyers accordingly....and if the buyers choose not to proceed with the purchase of the easement then that is their choice...no skin off my nose!
+1, 100%

Dontlookback
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Joined: Sun Aug 11, 2019 8:53 am

Re: Clause in deed of easement

Post by Dontlookback » Sun Aug 11, 2019 9:55 pm

Presumably you have a specialist lawyer dealing with this matter so get your money worth and get advice .....
(if not get one! I would even be getting the buyer to pay my legal costs for the benefit of an easement on my land!)

Personally, when selling anything, I would not be happy with any clause that may require me to expend more money later for the benefit of the buyer. For me.....the sale of a benefit is a one-off event for recompense. Ie they gain something and I lose something but get paid for that loss. A clause seeking to reopen the matter later would not be acceptable to me and I would instruct my lawyers accordingly....and if the buyers choose not to proceed with the purchase of the easement then that is their choice...no skin off my nose!
Would it not be possible to have a reciprocal agreement to benefit us?

mr sheen
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Joined: Fri Feb 27, 2009 2:33 pm

Re: Clause in deed of easement

Post by mr sheen » Sun Aug 11, 2019 10:08 pm

That would complicate the transaction even more leaving multiple reasons to reopen the transaction negotiation....I wouldn't accept anything that does not close and resolve all relevant matters relating to the transaction....but you need to speak to your lawyers since their may be deeds and complications with your land that we are unaware of.

IdefixUK
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Re: Clause in deed of easement

Post by IdefixUK » Mon Aug 12, 2019 6:51 am

I would be interested to know how this "covenant to repair" fits in with the other easements that the other users have (you say the access way is already quite heavily burdoned). You may find that you end up being obliged to pay for repairs and finding that the costs are not recoverable from those "other" users of the roadway.

Regards

span
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Joined: Sat Nov 06, 2010 1:34 am

Re: Clause in deed of easement

Post by span » Mon Aug 12, 2019 9:26 am

Have you asked that solicitor what is the purpose of this addition and why do they want it?

Dontlookback
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Re: Clause in deed of easement

Post by Dontlookback » Mon Aug 12, 2019 10:12 am

Have you asked that solicitor what is the purpose of this addition and why do they want it?
I think it is trying to continue the covenants for the next buyer.

Dontlookback
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Re: Clause in deed of easement

Post by Dontlookback » Mon Aug 12, 2019 10:14 am

Thank you all for your comments and thoughts, it has made things a little clearer in my mind and it has certainly given me questions to ask my solicitor.

MacadamB53
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Re: Clause in deed of easement

Post by MacadamB53 » Mon Aug 12, 2019 11:17 am

Hi Dontlookback,

The Grantor hereby covenants with the Grantee and its successors in title so as to bind the Grantor and the owners and occupiers of the Servient Land for the benefit of the Dominant Land and every part thereof:-
(a) to maintain the Servient Land coloured green on the plan attached in a good repair and condition subject to a fair and reasonable contribution from Grantee towards the costs of maintaining repairing and renewing the said land.

The Grantee covenants to pay on written demand a fair proportion of the cost of maintaining, repairing and renewing of the Servient Land shown coloured green only on the plan attached as determined by the Grantor and the proportion being determined in case of dispute by the Grantors surveyor


so, this sets out that the owner of the land MUST keep it in good repair and, when asked, the RoW owner MUST contribute towards this.

it burdens the owner of the land beyond what would be considered reasonable.

I would refuse.

the additional clause you queried (and the associated restriction in clause 12 that would be added to the register) sets out that the owner of the land CANNOT sell the burdened land without first getting the buyer to sign up to taking over ownership of the covenant.

kind regards, Mac

IdefixUK
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Re: Clause in deed of easement

Post by IdefixUK » Mon Aug 12, 2019 12:03 pm

Second schedule 3b.
....to use the Service Media serving the Dominant Land, which passes through the Servient Land.

You'd better make sure that (for example) any water supply passing through your land is (or will be) separately metered and that the owner of the Dominant Tenement is responsible for paying any bills. You may not have water meters installed yet, but they are coming your way!

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