Chapter 12- Restrictions And Obligations Over Land - freehold

Question 1

What is a covenant

Answer 1

Legally binding obligations

Question 2

What are two forms of covenants

Answer 2

Positive covenants

Restrictive covenants

Question 3

What is a restrictive covenant

Answer 3

Restrictions placed on the owner not do to something - not to build

Question 4

What is a positive covenant

Answer 4

An obligation to do something - maintain a fence etc

Question 5

How are covenants imposed on the land

Answer 5

By deed in the transfer of the land Or by express deed of the covenant

Question 6

What are the persons who imposed or are imposed of the covenant called

Answer 6

Covenantor- person who received imposition of covenant

Covenantee- imposes - has benefit if covenant is breached

Question 7

Are covenants always enforceable

Answer 7

Yes between original covenantor and covenantee

However

Not on purchasers unless burden has passed to purchaser of benefitting land
or

the burden has passed to purchaser of burdened land

Question 8

When will a covenant pass to new purchasers

Answer 8

• if it must benefit the land rather than an individual. The covenant must ‘touch and concern’ the land
• it must affect how the land is used or the value of the land.
• original covenantee (Graham) owned the land
• they original parties intended the covenant should pass with the land
• Purchases obtained the title from the original covenantee

Question 9

Successor in title example case

Answer 9

Smith and snipes halls v River Douglas

Question 10

Which case defined that ‘burden of covenants shall not pass to successors’

Answer 10

Austerberry v Oldham corporation

Or
Rhone v Stephens

Question 11

What is the principle laid in Hasall v Brizell

Answer 11

Person cannot take benefit under a deed without subscribing to the obligations.

I.e use of the road is benefit, obligation is to maintain the road

Question 12

What must be shown for a convenantee to enforce a covenant under equity

Answer 12

• annexed to the land
• expressly assigned time the successor in title
• land is part of a building scheme

Question 13

What is annexation

Answer 13

Wording of the covenant states the covenant is for ‘benefit of the retained land’

Question 14

Annexed case law

Answer 14

Rogers v Hosegood

Question 15

What is the statute for annexation

Answer 15

S78 LPA 1926

Question 16

What is assignment with land

Answer 16

Unbroken chain of covenant being assigned up to the current purchaser

Question 17

What is building scheme

Answer 17

A developer can impose a covenant as a ‘local law’ to benefit the land

Question 18

Under Elliston v Reacher which 4 requirements are to be met for a building scheme?

Answer 18

Parties must have obtained title from common owner

Owner must have multiple ‘lots’ and impose covenant prior to the sale

Owner must have intention it is a benefit for all purchasers

Purchases must have intended to purchase property on the basis the covenants are mutually enforceable

Question 19

Burden in equity meaning

Answer 19

The covenant is enforceable if the covenantor is under the burden of the covenant in equity

Question 20

What did Tulk v Moxhay establish with a restrictive covenant

Answer 20

• must be negative (restrictive)
• burden intended to pass with the land
• two pieces of land (dominant and servient)
• covenant benefits dominant tenement
• on registered land he has notice of covenant or unregistered protected by class Dii charge

Question 21

Under what circumstances can covenants be fully or partially abandoned under S84 of LPA

Answer 21

• Covenant is obsolete
• Prevents reasonable use of the land
• person whom the covenant benefits has discharged the covenant
• discharge of covenant does not impact person benefiting

Question 22

How else can a convenant be discharged

Answer 22

Owners can enter a deed of release or variation

Change to Sole owner of both dominant and servient land