Chapter 12- Restrictions And Obligations Over Land - freehold Flashcards
What is a covenant
Legally binding obligations
What are two forms of covenants
Positive covenants
Restrictive covenants
What is a restrictive covenant
Restrictions placed on the owner not do to something - not to build
What is a positive covenant
An obligation to do something - maintain a fence etc
How are covenants imposed on the land
By deed in the transfer of the land Or by express deed of the covenant
What are the persons who imposed or are imposed of the covenant called
Covenantor- person who received imposition of covenant
Covenantee- imposes - has benefit if covenant is breached
Are covenants always enforceable
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
When will a covenant pass to new purchasers
- 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
Successor in title example case
Smith and snipes halls v River Douglas
Which case defined that ‘burden of covenants shall not pass to successors’
Austerberry v Oldham corporation
Or
Rhone v Stephens
What is the principle laid in Hasall v Brizell
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
What must be shown for a convenantee to enforce a covenant under equity
- annexed to the land
- expressly assigned time the successor in title
- land is part of a building scheme
What is annexation
Wording of the covenant states the covenant is for ‘benefit of the retained land’
Annexed case law
Rogers v Hosegood
What is the statute for annexation
S78 LPA 1926
What is assignment with land
Unbroken chain of covenant being assigned up to the current purchaser
What is building scheme
A developer can impose a covenant as a ‘local law’ to benefit the land
Under Elliston v Reacher which 4 requirements are to be met for a building scheme?
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
Burden in equity meaning
The covenant is enforceable if the covenantor is under the burden of the covenant in equity
What did Tulk v Moxhay establish with a restrictive covenant
- 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
Under what circumstances can covenants be fully or partially abandoned under S84 of LPA
- 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
How else can a convenant be discharged
Owners can enter a deed of release or variation
Change to Sole owner of both dominant and servient land
