Right of Re-entry
| Author | Christopher Jessel |
| Pages | 47-56 |
Chapter 5
Right of Re-entry
5.1 PRELIMINARY
A right of entry or re-entry used to secure positive covenants provides that, if a covenant or condition attached to the servient land is broken, the beneficiary may enter on the burdened land. It can be granted by a landowner or, more often, reserved on sale. It subsists as a distinct interest in land so that it can stand on its own, although the benefit is normally annexed to a dominant tenement or to a rentcharge. The burden binds the servient land in the hands of a successor to the original covenantor.
The right may operate in one of two ways. The effect of entry may be to determine the freehold estate of the former servient owner, in which case it operates as a forfeiture. Alternatively the dominant owner may be entitled to come on to the land affected and carry out any works which ought to have been done under the positive covenant and then have a separate right, supported by potential forfeiture, to recover the cost of the works from the servient owner. Private rights of re-entry, both as forfeiture and as power to do works, are commonly found in leases and in principle the way the courts approach leasehold re-entry is similar to the way they can apply to entry on a freehold.
These contractual rights of entry are distinct from numerous statutory varieties of public right belonging to central or local government bodies or utilities carrying out public functions
48 Positive Covenants and Freehold Land
There can also be common law rights of entry attached to easements, such as the right to repair a track over which the dominant owner has a right of way, or a right to clean out a drainage ditch or repair a water pipe
Re-entry on forfeiture determines the freeholder’s estate. Before 1926 a determinable fee could subsist as a legal estate in land. The policy of the 1925 reforms was to reduce legal estates to two and the only type of legal freehold was intended to be a fee simple absolute. A determinable fee is not absolute and if an estate potentially subject to re-entry was to be treated as determinable it would have constituted an equitable estate and the land would have had to be held in settlement or trust. This problem was spotted after the LPA 1925 came into force and the Law of Property (Amendment) Act 1926 inserted into the LPA 1925, s 7 (which dealt with freeholds subject to determination) the words ‘a fee simple subject to a legal or equitable right of entry or re-entry is for the purposes of this Act a fee simple absolute’. It is therefore a legal estate even though determinable.
The LPA 1925, s 1(2) lists those rights in land which are capable of being legal interests. Section 1(2)(e) includes ‘Rights of entry exercisable over or in respect of a legal term of years absolute, or annexed, for any purpose, to a legal rentcharge’. Thus a free-standing right of entry exercisable over freehold land and not annexed to a rentcharge is an equitable interest and its exercise is subject to equitable principles. It is not an overriding interest within LRA 2002, Schedules 1 and 3 and therefore must be entered on the register of title.
The LPA 1925, s 4(2)(b)
All rights of entry affecting a legal estate which are exercisable on condition broken or for any other reason may after the commencement of this Act, be made exercisable by any person and the persons deriving title under him, but, in regard to an estate in fee simple (not being a rentcharge held for a legal estate) only within the period authorised by the rule relating to perpetuities.
The words from ‘but, in regard’ to the end were repealed by the Perpetuities and Accumulations Act 2009 so that such a right over freehold land can now be made exercisable without limit of time. It would consequently have been possible to convert rights of entry over freeholds and not annexed to a rentcharge into legal interests but that was not done.
5.2 SHILOH SPINNERS v HARDING
The device of a right of entry as a stand-alone remedy to enforce positive covenants, leading to forfeiture on breach, was approved by the House of Lords in Shiloh Spinners Ltd v Harding.
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