Chapter 8: Freehold Covenants Flashcards
Who is the covenantor?
The burdened party
Usually the buyer
Who is the covenantee?
The person having the benefit of the covenant
Usually the seller
What is a restrictive / negative covenant?
An obligation imposed on land which is negative in nature
E.g. Covenant not to build more than one dwelling on land
What is a positive covenant?
Requires covenantor to do something
E.g. Obligation to erect and maintain a fence
Can the original covenantee enforce a covenant against the original covenantor even after land has been sold?
Yes, the original covenantee can enforce a covenant against the original covenantor due to privity of contract
Will the burden of a negative covenant bind successors in equity?
Yes, if covenant is:
- Negative in nature
- Intended to run with land (implied unless parties expressly state otherwise)
- Notice given (via charges register for registered land or D(iii) land charge for unregistered)
- Touches and concerns land
Will the burden of a negative covenant bind successors in common law?
Generally, the burden does not pass at common law. 2 exceptions:
1. Successive successors enter indemnity covenant
2. Mutual benefit and burden rule
Will the benefit of a negative covenant bind successors in equity?
Yes, if:
- Covenant touches and concerns land; AND
- Attached to land (presumed unless stated otherwise); OR
- Building scheme; OR
- Expressly assigned e.g. when land sold
Will the benefit of a negative covenant bind successors in common law?
Yes, if covenant:
- Touches and concerns land
- Intended to run with land (implied)
- Covenantee held legal estate when covenant made
- Assignee now holds legal estate
Does a positive covenant need to be registered?
No as it is not binding on successors in title and only enforceable in contract. An entry can still be made on the Proprietorship Register. Often a restriction will still be entered on the buyer’s title deeds stating that the buyer has entered a positive covenant
Can positive covenants run with the land?
No
