Two landowners own adjacent pieces of land, and both properties do not have registered titles. They both reach an agreement where one of them will grant the other a right-of-way to access the public highway. To formalise this agreement, they execute a deed of easement. However, one of the parties forgets to sign the deed, while the other party signs it without having their signature witnessed. For three years, the landowner who has the benefit of the right-of-way uses it. But later, the landowner who granted the right-of-way requested them to stop. The landowner who has the right-of-way then consults a solicitor for advice regarding the deed of easement.
What advice is the solicitor expected to provide concerning the deed of easement?
Two landowners own adjacent pieces of land, and both properties do not have registered titles. They both reach an agreement where one of them will grant the other a right-of-way to access the public highway. To formalise this agreement, they execute a deed of easement. However, one of the parties forgets to sign the deed, while the other party signs it without having their signature witnessed. For three years, the landowner who has the benefit of the right-of-way uses it. But later, the landowner who granted the right-of-way requested them to stop. The landowner who has the right-of-way then consults a solicitor for advice regarding the deed of easement.
What advice is the solicitor expected to provide concerning the deed of easement?
A legal right has not been created but a right in equity has arisen which should be protected by registration of a D(iii) land charge (equitable easement).
(D)The solicitor needs to inform the landowner that a legal right has not been established, but a right in equity has been created. This equity right should be protected by registering a D(iii) land charge. In general, for a deed of easement to be legally binding, it must be in writing, clearly intended to be a deed and signed in the presence of a witness who attests the signature. However, in this case, the deed of easement is defective because it has not been properly signed. Nonetheless, because the parties tried to create a deed of easement and the right mentioned in the deed has been exercised subsequently, equity will usually enforce an equitable easement. To protect an equitable easement, it should be registered as a D(iii) land charge (equitable easement).
The answer option (A) is incorrect because the absence of a valid signature on the deed makes it impossible to establish a legal right.
Answer option (B) is incorrect because an overriding interest is only relevant to registered land; it is a right that can bind a buyer, even if it does not appear on the register of title. However, the land in question is unregistered.
Answer option (C) is incorrect because we deal with an easement, not a restrictive covenant.
Answer option (E) is incorrect because a right-of-way by prescription can only arise if there is evidence of 20 years of use, but in this case, the right has only been exercised for three years.