Chapter 7: Freehold covenants Flashcards
what is a freehold covenant?
A promise to do something or a promise not to do something on freehold land - for the benefit of neighbouring land.
what is a positive covenant?
request to do something on the land
usually spend money
what is a restrictive covenant?
a promise to refrain from doing something
what are the steps to deciding what rules apply when deciding if a covenant is binding?
step 1 is the covenant negative or positive?
step 2 who is the covenantor/ covenantee
step 3: passing in law/ equity? original owner or successor?
step 4: benefit or burden?
step 5: registered/ unregistered?
who is the covenantor/ covenantee?
covenantee - person who makes/ benefits/ enforces the covenant
covenantor - person who is bound to carry put the promise of the covenant
how do you show the burden?
someone prevented from doing something on their own land
how do you show the benefit?
someone showing they would be at a disadvantage if covenant was breached.
what is the rule for the passing of the benefit/ burden between original parties?
privity of contract = bound
what is the general rule at common law?
any covenant cannot run with the land
what must a landlord prove if they want to enforce a covenant on a successor covenantor
must prove the burden has also passed
benefit will pass as the covenantee is still the original landlord
what is the exception to the rule at common law?
Doctrine of mutual burden and benefit - landowner who enjoys benefits that come with burdens may ONLY take the benefits if he also takes on the burden
what type of covenants are not binding in law on successors in title?
positive covenants
restrictive covenants - must consider equity
when would we need to consider the benefit in law between successors in title?
where the original covenantee sells/ transfers land that has a benefit
when would we need to consider the burnden in law between successors in title?
when covenantor sells their land to someone else - new covenantor
how can the original covenantee sell/ transfer land
Express assignment under s36 LPA 1925 - assign benefit at at the same time transfer of land
Contracts Act 1999 - third party defined by name can = enjoy benefit
S56 LPA 1925 - third party identified at the time the covenant was made = enjoy benefit
what are the conditions for a benefit to run with the land in law?
- Covenant must touch and concern the land
- Original convenantee must have held the legal estate (freehold/ leasehold)
- The successor must obtain title from original covenantee
- The benefit of the covenant must have been intended to run with the land:
what is the rule pre/ post 1925 for a successor obtain their title?
pre 1925 - must be the same legal estate as the original covenantee
post 1925 - successor does not have have to have the same legal estate as the original convenantee
in what ways can the benefit be intended to run with the land?
Express annexation
Implied annexation
S78 LPA 1925
what is express annexation
specific words in a deed stating the covenant is intended to benefit the land and pass to successive owners = pass automatically
what is implied annexation?
Benefit will pass if the facts show the identity of land is sufficiently clear (rare)
what is annexation under s78 LPA 1925?
Every covenant which is held to touch and concern the land will automatically be annexed (pass).
what can pass in equity?
the burden of restrictive covenants
postive covenants cannot pass.
what are the conditions for the burden in equity to pass between successors in title?
Must be negative/ restrictive covenant
At the date of the convent, the covenantee retained land (ownership) which was benefitted by the covenant.
Covenant must touch and concern the land
Burden must be intended to run with the land (look to see if notice was given)
how is intention t run with the land satisfied when passing the burden in equity?
presumed to be intended to run with the land unless it is specified opposite in the deed
