SECONDARY SOURCES AND CRITICS

FREEHOLD COVENANTS

Dixon; Gray & Gray; Gardner; McFarlane: Austerberry rule- formalistic, a practical inconvenience

Law Commission (2006; 2011) covenants are complex- need reform to land obligations - binds successors

Bevan Benefit and burden- insufficient-‘historical and elemental fragility’

Davie contrasts- the doctrine is a convincing/useful rationale

Tito v Waddell- principle can apply when burden/benfit-independent

O’Connor -(defends Austerberry)- doctrinally coherent and policy-sound- supports Lord Templeman’s- Rhone v Stephen

• “Taking the easy option of abolishing the rule may turn to be the hard option in the long run.”

EASEMENTS

Haley- ouster is a useful forensic tool - to distinguish an easement from a posessory claim

• abolishing ouster is unprincipled and counterintuitive- need fact-sensitive, case-by-case reasoning

• criticises Law Commission- overly extensive rights, harming marketability of land

Law Commission (2011)- ouster too vague and unpredictable- needs reform

Gray & Gray ouster is a “smokescreen”, hiding judicial discretion rather than clear rules- too restrictive

Lord Scott- “reasonable use” is uncertain- replace with clearer possession and control test.

PROPRIETARY ESTOPPEL

CO OWNERSHIP

• Law Commission (2006)

Trusts of Family Home