Clause in deed of easement

MacadamB53
Posts: 6605
Joined: Sun Dec 09, 2012 11:13 pm
Number of Posts per Page: 100
Number of topics per page: 50

Re: Clause in deed of easement

Post by MacadamB53 » Mon Aug 12, 2019 12:56 pm

MacadamB53 wrote:
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
correction - CANNOT sell any of the land included in the title, not just the burdened area...

concerned regards, Mac

ukmicky
Posts: 4946
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Clause in deed of easement

Post by ukmicky » Tue Aug 13, 2019 1:10 am

Dontlookback wrote:
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.
Do you have a solicitor ,I fear not as this solicitor is seriously pushing his luck .

Do not agree to this . You cannot agree to anything which requires you get any form of agreement to be signed by a future purchaser of your land and the permission of the owner of the dominant land. Why would you want to ,why should you have to . This is something that is not normally asked of someone granting an easement . You are giving away rights to your land by agreeing to this easement ,that is enough . The only person who should be laying down conditions is you.

If you say no they get no easement ,you are not the one who needs this.

Do not do it .

Imagine trying to sell your property and have to tell a future purchaser that they need to sign covenant for the benefit of the neighbouring land in order to purchase you4 property . Many people will walk away because this kind of thing quite rightly scares people and no ne wants to be scared buying the most expensive thing they will ever purchase in there life.

This solicitor is mad if he thinks he can get you to ageee to this
Last edited by ukmicky on Tue Aug 13, 2019 1:36 am, edited 2 times in total.
Any information provided is not legal advice and you are advised to gain a professional opinion

ukmicky
Posts: 4946
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Clause in deed of easement

Post by ukmicky » Tue Aug 13, 2019 1:19 am

Omg I just read the whole thing . Do not agree to it under any circumstances, remember you hold all the cards here.

An easement is different to a covenant . You are agreeing to sell them an easement you are not doing anything that requires you to agree to a covenant . Any covenant that’s runs along side an easement is normally written to benefit the servient land owner, (you) not the other way round. There is no need for you as the servient owner to agree to a covenant that binds you to anything.


There is so much that is not standard within the draft you would be a fool to agree to it. I’m glad you came here.

I’m more than concerned here Mac
Any information provided is not legal advice and you are advised to gain a professional opinion

ukmicky
Posts: 4946
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Clause in deed of easement

Post by ukmicky » Tue Aug 13, 2019 1:41 am

Your next comment should be , it’s that bad is it.

And our collective response would be , yes
Any information provided is not legal advice and you are advised to gain a professional opinion

ukmicky
Posts: 4946
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Clause in deed of easement

Post by ukmicky » Tue Aug 13, 2019 3:20 am

An Easement and A covenant are two different things ,do let him confuse you . When someone grants an easement the grantor the owner of the land often also requires a covenant be signed that binds the dominant land to protect it from abuse not the other way around .
There is no way to mitigate against these parts below and they are things that are just not asked of a grantor of an easement and you as servient owner should not be agreeing to any covenant athat binds you to anything.

A future solicitor working on behalf of a potential purchaser of your land will read them and they will not go down well and he or she will warn his clients of them. The only way to deal with them is to remove them completely . Do not let the solicitor try and sweet talk you , they are good at that. Also remember your current neighbours may not be there in 5 years . You could have the nightmare neighbours.

No solicitor acting on your behalf would advise you to retain these parts and there is no being nice when you are dealing with your house . Tell him to remove them or there will be no easement . He will remove them as they are all no standard additions to an easement .

Everything below is bad and needs removing but the stuff in red is absolutely shocking to the point like he is deliberately trying to cheat you and me personally i would refuse any further dealing with the solicitor who would dare to add such things in hope that you would agree due to your lack of knowledge about these things .

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
Comment
The law says you are not responsible for maintaining a ROW for the benefit of the dominant tenement. Don't let him get around the law by agreeing to a covenant that will legally contract you to doing it.


(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.
Comment
Under no circumstances agree to the above in red

(
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
Comment
This Stops you using your land as your land . There should actually be a covenant in your favour here saying access to the service media will only be allowed after reasonable notice is provided to the servient land owner. All work must be completed within 48 hrs ,a schedule of works MUST BE provided before any work can commence , a bond to be held by a surveyor paid for by the dominant tenement to be returned once the land has been returned back to it original state . No additional services can be laid without the express permission of the servient tenement . [/i]

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.
Comment
This has got nothing to do with you granting an easement so why add it


[
color=#FF0000]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 [/color]
Comment
In theory you could be preventing yourself from entering on your land here if you innocently breeched a covenant due to the language of 7 above.



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.”
Comment

Under no circumstances agree to the above in red
Any information provided is not legal advice and you are advised to gain a professional opinion

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

Re: Clause in deed of easement

Post by Dontlookback » Tue Aug 13, 2019 2:10 pm

OMG...

Thank you so much for all your input, I have put any transaction on hold and have queried everything all of you have mentioned with my solicitor.

I am very pleased I joined up, you have been extremely helpful..

SwitchRich
Posts: 200
Joined: Wed Feb 24, 2016 10:34 am

Re: Clause in deed of easement

Post by SwitchRich » Tue Aug 13, 2019 2:56 pm

Fantastic example of why the hive mind of Gardenlaw is a great thing indeed! :)
Shocking to think this solicitor was trying on so much as to put you in a awful position if you had naively signed this.

IdefixUK
Posts: 573
Joined: Mon Jan 01, 2018 12:07 pm
Number of topics per page: 25

Re: Clause in deed of easement

Post by IdefixUK » Tue Aug 13, 2019 7:14 pm

It would be great if later you would keep the forum updated, especially as to the changes which must surely be made to the wording.

I was just thinking that since the land is already burdoned, presumably with other properties benefitting from a ROW over it, if the wording in the dees for those existing users is the same for each then would it not make sense to use similar wording for the new easement? That way everyone gets the same deal, then if there are any problems in the future you can deal with that "en-block"

Regards

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

Re: Clause in deed of easement

Post by Dontlookback » Wed Aug 14, 2019 9:07 pm

I have had a long conversation with my solicitor today, he is somewhat perplexed as to how I suddenly know so much (thanks to you all).

He is rewriting and negotiating the deed, I hope to see the new draft next week :D

Thanks again, what a great site.

ukmicky
Posts: 4946
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Clause in deed of easement

Post by ukmicky » Wed Aug 14, 2019 11:10 pm

Just tell your solicitor you are not prepared to accept any agreements or covenants that binds you or the servient tenement but expect there to be Covenants that bind the dominant tenement in-regards to maintainance of the right of way, a covenant in regards to conditions of access for maintainance of the services and a stipulation that no further services can be laid in the future without your or the servient land owners permission
Any information provided is not legal advice and you are advised to gain a professional opinion

Collaborate
Posts: 1776
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: Clause in deed of easement

Post by Collaborate » Wed Aug 14, 2019 11:41 pm

Dontlookback wrote:
Wed Aug 14, 2019 9:07 pm
I have had a long conversation with my solicitor today, he is somewhat perplexed as to how I suddenly know so much (thanks to you all).

He is rewriting and negotiating the deed, I hope to see the new draft next week :D

Thanks again, what a great site.
But.... this is exactly why you pay a solicitor. To advise you on all of this. To explain to you why it wasn't in your best interest to agree to those terms.

Perhaps time to look for another solicitor?

Post Reply