7- Freehold Covenants

Question 1

Formation of covenant: S53(a) LPA 1925

Answer 1

Covenant is equitable only and the minimum requirement is that it is made in SIGNED WRITING but should be by deed

Question 2

When a covenant is real: the Swift test in P&A Swift Investments

Answer 2

• Benefits only the estate owner for the time being of the covenantee’s land and would cease to be of benefit if it were separated from ownership of the covenantee’s land
• Affects the nature, quality, mode of user or value of the covenantee’s land
• Not expressed to be personal

Question 3

Enforcement of freehold covenants-original parties to covenant

Position of the original covenantor under the contract: S79 LPA 1925

Answer 3

The original covenantor will always be liable

Question 4

Passing of benefit at common law: S78 LPA 1925

Answer 4

Statutory annexation —> if can’t see express words of intention for covenant to run this is safety net for showing intention

Question 5

Successors in title to original covenantor: Austerberry v Corporation of Oldham

Answer 5

Can’t make someone to do seating that they didn’t originally agree to

Question 6

Equitable rules: passing of benefit at equity

Answer 6

Under equity, the benefit passes if:

(i) the covenant touches and concerns the land; and
(ii) is expressly assigned or is annexed. Annexation is by express wording or deemed/statutory under s 78 LPA 1925.

Question 7

Passing of burden at equity: Tulk v Monday

Answer 7

Burden will pass in equity if:
(i)Covenant is restrictive

(ii) Covenant touches and concerns land of covenantee
(iii) Burden was intended to run with land and be enforceable by successors —> intention can be by express words or deemed under S79 LPA 1925

(iv) Successor has notice of covenant:
- Registered land- notice in charges register
- Unregistered land (post 1925 D(ii) land charge)

Question 8

Ways round problem

Mutual benefit and burden: Hazel v Brizell

Answer 8

Successor who takes benefits of right in deed must accept the burden of covenants connected to those rights in the same deed

(Ie. Where party benefits from land, they must accept the burden)

Question 9

Ways round problem

Benefit and burden must be related to one another: Rhône v Stephens

Answer 9

Lord templeman:

“It does not follow that any condition can be rendered enforceable by attaching it to a right nor does it follow that every burden imposed by a conveyance may be enforced by depriving the covenantor’s successor in title of every benefit which he enjoyed thereunder. The condition must be relevant to the exercise of the right.”