Covenants Flashcards
What are the two forms of covenants
Positive and restrictive
What is a restrictive covenant
Restrictions placed on the owner, for example not to run the business, not to build, and not to build above a certain height.
What is a positive covenant
Covenants which impose an obligation on a purchaser to do something and usually expend money. This could be to maintain offence.
Who is the covenantor
The person who gives the covenant is called the covenantor And they have the burden of the covenant.
Who is the covenantee
The person who receives a covenant is called the covenantee and they have the benefit if the covenant is breached
Name the reasons a benefit will run at common law
The covenant touches and concerns the land of the covenantee
The original covenantee owned the legal estate in the land to be benefited when the covenant was made
The original parties intended that the covenant should pass with the land.
The successor in title derived title from the original covenantee.
What is the general rule for the burden at common law?
The burden of a covenant will not passed subsequent purchasers
What case decided that the burden of a covenant will not pass to subsequent purchasers
Austerberry v Oldham Corporation [1885]
What happened in Halsall v Brizell [1857]
A person cannot take a benefit under deed without subscribing to the obligations under it. Having accepted the benefit, that personal also be bound by the burden.
Give an example of caselaw for the burden in equity
Tulk v Moxhay [1848]
As a result of Tulk v Moxhay [1848], a purchaser of the burdened land is bound by a covenant only if what?
The covenant is negative in nature
The burden of the covenant was intended to pass with the land
There are two pieces of land – dominant tenements and a servient tenement.
The covenant benefits are dominant tenement.
The purchaser has notice of the covenant
