Covenants Flashcards
What is a covenant
A profit to do or not to do something
What does annexation mean
Benefit of covenant is attached to land of Covenantee and passes automatically to successor in title
What is a positive covenant
Requires some effort or expenditure to perform obligations
What is a restrictive covenant
Requires no effort or expense
How to tell if a covenant is positive or restrictive
Look at substance not just wording to see if it requires expense or effort to perform obligation
3 methods of annexation
Express
Implied
Statutory
When in annexation of a covenant implied
When court thinks annex was intended and would be unjust to ignore intention
When is a covenant annexed by statute
S78 LPA annexes covenants automatically to land retained by covenantee if it touches and concerns the land
Can s78 be excluded
Yes by original covenanting parties
Can the benefit of a covenant be assigned to a successor
Yes can do this expressly
How to expressly assign the benefit of a covenant
MUST be at same time as transfer of land
Must be in writing and signed by assignor (original covenantee)
Written notice must be given to covenantor
Can you modify or release a covenant
Yes can agree expressly by deed
Unity of seisin (common ownership)
S84LPA
How does s84 LPA modify or release a covenant
Only restrictive covenants if 1 of following applies:
It is obsolete
It impedes reasonable use of land and either it doesn’t secure any benefit or value OR it is contrary to public interest
Those entitled to benefit expressly or implied agree to discharge
Or
Discharge won’t injure benefited person
Can s84 be used to modify or release covenant if identity of dominent owner is not certain
A preliminary application can be made to establish identity
Remedies for breach of covenant
POSITIVE covenant
Damages against original covenantor by original covenantee or successor to covenantee (provided they have benefit at common law)
Or
Specific performance by original Coventor (but not successor to covenantor) unless they have no control over land
Remedies for breach of covenant
RESTRICTIVE covenant
Injunction
Or damages in lieu
Can the burden of a covenant (whether restrictive or positive) pass at common law
No - only the benefit can pass at common law not the burden
Can the burden of a restrictive covenant pass at equity
If Tulk v Moxhay applies Covenant must be restrictive Made to benefit dominent land Covenant must touch and concern land Intent to burden servient land And Owner of servient land must have notice of covenant
Meaning of touch and concern
Benefit land, not expressed as personal, won’t benefit owner if they’re separated from their land
Made to benefit dominent land - meaning
Must be an identifiable dominent land
Intent to burden servient land - meaning
Intention can be express or implied
Express id in doc creating covenant
Implied if s79 LPA applies
When does s79 LPA imply intention to burden servient land
Covenant shall be deemed to bind covenantor and successors of covenantor unless contrary intention is expressed
Requirements for benefit of covenant pass to successors of covenantee at common law
Covenant touch and concerns land
Intended for benefit to run (express words or implied by s78 LPA)
Covenantee has legal estate in legal land (not equitable interest)
Buyer of benefitted land takes legal title
How does a restrictive covenant pass to successor
Burden - equity tulk v moxhay (cannot pass at common law)
Benefit - common law
How does a positive covenant pass to successors
This is not possible. Positive covenant cannot run with land at common law or equity so not enforceable against successors in title
3 ways to get around the rule that positive covenants don’t run with the land
Create a lease
Indemnity covenant
Doctrine of mutual benefit and burden
How can a positive covenant run with the land by creating a lease
Instead of selling freehold create a lease and then both restrictive and positive covenants are binding on successor in title to a lease
How can a positive covenant run with the land by using an indemnity covenant
On sale of servient land require buyer to enter into indemnity covenant promising to observe covenant and indemnify seller for loss by breach
Get an indemnity from each subsequent buyer to create a chain
If original covenantor is sued by covenantee (original or successor) the original covenantor can sue their successors on the indemnity
Original covenantor cannot sue current owner as no contract between them- only their direct successor
What is the doctrine of mutual benefit and burden
Halsall v Brizell - a person who wishes to take advantage of a service /facility that benefits their land must also comply with any corresponding obligations
What are the conditions of Halsall v Brizell (doctrine of mutual benefit and burden)
Burden must be relevant to the exercise of the rights that enable the befit to be obtained (clear correlation between benefit and burden)
And
Covenantors successor must have the opportunity to elect whether to take the benefit (and accept the burden) or renounce it (and escape the burden)
What does the rule in Halsall v Brizell allow the owner of the benefitted land to do
Can prevent the exchange taking place if costs of maintenance have not been paid
