Covenants

Question 1

What is a covenant

Answer 1

A profit to do or not to do something

Question 2

What does annexation mean

Answer 2

Benefit of covenant is attached to land of Covenantee and passes automatically to successor in title

Question 3

What is a positive covenant

Answer 3

Requires some effort or expenditure to perform obligations

Question 4

What is a restrictive covenant

Answer 4

Requires no effort or expense

Question 5

How to tell if a covenant is positive or restrictive

Answer 5

Look at substance not just wording to see if it requires expense or effort to perform obligation

Question 6

3 methods of annexation

Answer 6

Express
Implied
Statutory

Question 7

When in annexation of a covenant implied

Answer 7

When court thinks annex was intended and would be unjust to ignore intention

Question 8

When is a covenant annexed by statute

Answer 8

S78 LPA annexes covenants automatically to land retained by covenantee if it touches and concerns the land

Question 9

Can s78 be excluded

Answer 9

Yes by original covenanting parties

Question 10

Can the benefit of a covenant be assigned to a successor

Answer 10

Yes can do this expressly

Question 11

How to expressly assign the benefit of a covenant

Answer 11

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

Question 12

Can you modify or release a covenant

Answer 12

Yes can agree expressly by deed
Unity of seisin (common ownership)
S84LPA

Question 13

How does s84 LPA modify or release a covenant

Answer 13

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It is obsolete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

Question 14

Can s84 be used to modify or release covenant if identity of dominent owner is not certain

Answer 14

A preliminary application can be made to establish identity

Question 15

Remedies for breach of covenant

POSITIVE covenant

Answer 15

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

Question 16

Remedies for breach of covenant

RESTRICTIVE covenant

Answer 16

Injunction

Or damages in lieu

Question 17

Can the burden of a covenant (whether restrictive or positive) pass at common law

Answer 17

No - only the benefit can pass at common law not the burden

Question 18

Can the burden of a restrictive covenant pass at equity

Answer 18

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

Question 19

Meaning of touch and concern

Answer 19

Benefit land, not expressed as personal, won’t benefit owner if they’re separated from their land

Question 20

Made to benefit dominent land - meaning

Answer 20

Must be an identifiable dominent land

Question 21

Intent to burden servient land - meaning

Answer 21

Intention can be express or implied
Express id in doc creating covenant
Implied if s79 LPA applies

Question 22

When does s79 LPA imply intention to burden servient land

Answer 22

Covenant shall be deemed to bind covenantor and successors of covenantor unless contrary intention is expressed

Question 23

Requirements for benefit of covenant pass to successors of covenantee at common law

Answer 23

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

Question 24

How does a restrictive covenant pass to successor

Answer 24

Burden - equity tulk v moxhay (cannot pass at common law)

Benefit - common law

Question 25

How does a positive covenant pass to successors

Answer 25

This is not possible. Positive covenant cannot run with land at common law or equity so not enforceable against successors in title

Question 26

3 ways to get around the rule that positive covenants don’t run with the land

Answer 26

Create a lease
Indemnity covenant
Doctrine of mutual benefit and burden

Question 27

How can a positive covenant run with the land by creating a lease

Answer 27

Instead of selling freehold create a lease and then both restrictive and positive covenants are binding on successor in title to a lease

Question 28

How can a positive covenant run with the land by using an indemnity covenant

Answer 28

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

Question 29

What is the doctrine of mutual benefit and burden

Answer 29

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

Question 30

What are the conditions of Halsall v Brizell (doctrine of mutual benefit and burden)

Answer 30

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)

Question 31

What does the rule in Halsall v Brizell allow the owner of the benefitted land to do

Answer 31

Can prevent the exchange taking place if costs of maintenance have not been paid