7. Freehold Covenants

Question 1

Tulk v Moxhay

Answer 1

1. Covenant must be negative
2. Covenant must accommodate dominant tenement
   i. Original covenantee must have retained interest in land at date of covenant + successor(s) at time of enforcement
   ii. Covenant must touch and concern land
   iii. Servient and dominant lands must be sufficiently proximate
3. Original parties must have intended burden to run
4. The covenantor must take with notice of the covenant

Question 2

Haywood v Brunswick

Answer 2

Test for whether covenant is negative - performance involves expenditure of money?

Question 3

Shepherd Homes v Sandham

Answer 3

Where possible negative element can be severed and allowed to pass first hurdle

Question 4

Powell v Hemsley

Answer 4

Negative undertaking may be found to be a condition of a positive covenant overall, or vice versa

Question 5

LCC v Allen

Answer 5

Original covenantee must have interest at time of covenant + successor at time of enforcement

Question 6

LRA 2002, s 32

Answer 6

For registered land, burden must be entered as notice in the charges section of the register of the servient property

Question 7

Land Charges Act 1972

Answer 7

Covenant imposed after 1925 must be registered as a Class D(ii) land charge

Question 8

Land Charges Act 1972, s 4(6)

Answer 8

If not registered, it is void against purchaser for money or money’s worth of a legal estate

Question 9

Wilkes v Spooner

Answer 9

If burden is extinguished through lack of notice, subsequent purchaser will also take free of the burden, even if has notice

Question 10

LRA 2002, s 29(1)

Answer 10

If it has not been entered, purchaser for valuable consideration will take free of it (though volunteer will still be bound)

Question 11

Rogers v Hosegood

Answer 11

Express annexation - language of covenant makes it sufficiently clear parties intend benefit to become part of the land of covenantee rather than personal advantage

Question 12

LPA 1925, s 78(1)

Answer 12

Provides that benefit of covenant shall pass to successors in title, where this is not done expressly

Question 13

Roake v Chadha

Answer 13

S 78(1) can be expressly excluded

Question 14

LPA 1925, s 136

Answer 14

Benefit of covenant may be expressly assigned by original covenanter as chose in action - requirements

1. Assignment must be in writing
2. Express notice in writing of assignment must be given yo covenantor

Question 15

P and A Swift Investments v Combined English Stores

Answer 15

1. Covenant must touch and concern the land
2. Original parties must intend benefit to run with land retained by covenantee
3. At time covenant was made, covenantee must have held legal estate in land
4. Successors in title must hold legal estate in land

Question 16

Austerberry v Corporation of Oldham

Answer 16

At common law burden of covenant can never pass to successors in title of original covenantor

Question 17

LPA 1925, s 79(1)

Answer 17

Intention that original covenantor remains liable is implied

Question 18

Halsall v Brizell

Answer 18

Where deed grants benefit but also imposes connected burden, servient owner cannot take benefit and ignore burden

Question 18

Rhone v Stephens

Answer 18

If successor has no choice but to take benefit, rule doesn’t apply – successor takes benefit without burden