Chapter 4: Freehold covenants Flashcards
- Introduction to freehold covenants
1.1 Covenants – terminology
A covenant is a promise which is usually contained in a deed, although a deed is not essential.
Covenants between freehold owners generally arise when one person sells part of their land and
wishes to ensure that the buyer does not do anything which could affect the amenity and value
of the seller’s retained land. They are a means of private control of land use
Assessment focus point
To validly create a covenant, it must be in writing and signed by the grantor (LPA 1925, s
53(1)(a)).
Key Terminologies
Covenantee: The person who receives the benefit of the promise. The covenantee can sue if
the covenant is breached.
Dominant land: The land which is benefitted by the promise.
Covenantor: The person who makes the promise. The covenantor can be sued if the covenant
is breached.
Servient land: The land which is burdened by the promise.
Successor covenantee: A new owner of the dominant land.
Successor covenantor: A new owner of the servient land.
1.2 Covenants can be positive or negative
Positive Covenant
A promise to do something.
This usually involves expenditure of money.
Examples: Positive covenants
- To maintain a boundary fence
- To contribute to the cost of repairing a shared drive
1.2.2 Negative or restrictive covenant
A promise not to do something.
This restricts the use of the land and can be complied with by inaction.
Examples: Restrictive covenants
- Not to use the land for business purposes
- Not to build above a certain height
Note. A restrictive covenant is an equitable interest in land. It is a recognised proprietary right. A
positive covenant is not.
1.3 The legal issue with covenants
As between the original parties (the covenantor and covenantee) there is no legal issue, all the
covenants are enforceable on contractual principles. However, when the dominant and/or servient land are sold, the successors are not parties to the original contract and there is no direct contractual relationship between the party in breach of the covenant and the party who is looking to enforce it. The legal issue is therefore whether the covenants are enforceable by and against successors in title to the dominant and servient land.
Example
A owns a piece of land, and sells half of it to B, retaining the rest.
In the transfer deed, B enters into two covenants: to use the land for retail use only; and to erect
and maintain a security fence between the two pieces of land.
As between A and B, the covenants are enforceable on contractual principles.
A’s land is sold to C and B’s land is sold to D.
There is no contractual relationship between C and D.
D breaches the covenants.
The legal issue is can C enforce the covenants direct against D in these circumstances?
1.4 Passing the benefit and burden
There are two sets of rules for passing the burden and benefit of covenants. The equitable rules
and the common law rules.
For a covenant to be enforced in equity, it must be shown that the benefit and burden have both
passed using the rules of equity. For the covenant to be enforced at common law, it must be shown that the burden and benefit have both passed using the common law rules. The rules in common law and equity must not be mixed.
1.5 Summary
- A freehold covenant is a promise relating to land.
- Although covenants are often contained in transfer deeds when land is sold, they need only be
in writing and signed by the grantor (the covenantor). - The covenantor is the party that enters into/grants the covenant and owns the servient
(burdened) land. - The covenantee is the party that receives the benefit of the covenant and owns the dominant
(benefitted) land.
1.5 Summary
- Covenants can be both positive and restrictive (negative). A restrictive covenant is an equitable
interest in land ie a proprietary right. - When the dominant and/or servient land is transferred to a third party, the legal issue is the
enforceability of a covenant(s) by and against successors who were not a party to the original
grant. - The benefit and burden of a covenant must pass to successors using the common law or
equitable rules.
2 Positive and restrictive covenants
[…] Only such a covenant as can be complied with without expenditure of money will be
enforced against a successor covenantor.
Lindley LJ, Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403
Positive covenants will not be enforced against a successor covenantor in equity. It is therefore
important to be able to distinguish between positive and restrictive covenants.
2.1 Determining the nature of a covenant
The test for identifying whether a covenant is positive or restrictive is set out in Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403. This is known as the ‘hand in pocket’ test. If covenantors have to put their hands in their pockets to find money to spend to comply with the
covenant, it is positive.
Expenditure of money, effort or time
Time is money’ so any covenant which requires expenditure of money, effort or time falls within
the definition of positive covenants.
Deciding whether a covenant is positive or restrictive is a matter of looking at the substance not
form: look beyond the words used and ask: ‘what is the essence of the obligation?’
Example: Looking at the substance of a covenant
A covenant not to allow a building to fall into disrepair. This covenant appears to be restrictive as it is written in a negative form, but the underlying obligation is to maintain the building: positive.
2.2 Covenants can be both positive and negative - mixed
Mixed Covenants
Mixed covenant: A promise which has positive and restrictive elements
Mixed covenants can be interpreted in one of two ways:
(a) As separate covenants; or
(b) As one obligation with a condition attached.
Example: Mixed covenant
A covenant not to build on the land without the consent of the owner of the dominant land.
* ‘Not to build’ is the restrictive part of the covenant;
* ‘without consent’ is the positive part of the covenant.
2.2.1 Separate covenants
This approach can be taken if the positive and restrictive aspects of the obligation can be separated to create two separate ‘stand alone’ covenants; one positive and one restrictive.
Example: When a covenant can be separated
A covenant to paint the exterior of a building every two years and not to paint the front door red.
This covenant can be split into two parts:
(a) To paint the exterior every two years: positive
(b) Not to paint the front door red: restrictive
2.2.2 As one obligation with a condition attached
This approach is taken if the mixed covenant cannot be split into two separate obligations. The
covenant is interpreted as being overall positive or restrictive, depending on whether it obliges the covenantor to do or not do something. The additional element, which cannot stand alone as a covenant, is viewed as being simply a condition attached to an overall positive or restrictive obligation.
Example: A mixed covenant that cannot be split
A covenant not to build on the servient land without the consent of the dominant owner.
This covenant cannot be split.
* ‘Not to build’ is the main obligation: restrictive covenant.
* ‘Without consent’ is not a stand-alone obligation. Seeking consent only operates as part of
the main obligation. The covenant is therefore a restrictive covenant with a positive condition attached.
2.3 Summary
- A positive covenant is a promise to do something.
- A restrictive covenant is a promise not to do something.
- To decide whether a covenant is positive or restrictive, look at the substance not the words.
- The ‘hand in pocket’ test helps to interpret covenants as positive or restrictive.
- A mixed covenant has positive and restrictive elements.
- It may be possible to split a mixed covenant into two separate covenants.
- If it is not possible to split the covenant, it will be viewed as either overall positive with a
restrictive condition attached, or as overall negative with a positive condition attached.
3 Equitable rules: Burden
3.1 The general rule
As a general rule, the burden of a covenant does not pass to a successor at common law:
Austerberry v Oldham Corporation [1885] AC 29 ChD 750. This decision was followed for over 100 years and was confirmed by the House of Lords in Rhone v Stephens in 1994. This means that at common law the covenant is unenforceable against a successor in title to the covenantor and the covenantee or the successor covenantee is unable to enforce the covenant against the person who has breached it.