covenants Flashcards
what is a covenant?
a promise contained in a deed
who is the covenantor?
the person making the promise
who is the covenantee?
the person receiving the promise
what is a positive covenant?
requires the covenantor to spend time, money or effort to comply
what is a restrictive covenant?
prohibits action
when will the benefit of a covenant pass to a successor in common law?
- the covenant touches and concerns the land (affects the nature or quality of land, how it can be used or the value -
P & Swift Investments v Combined English Store Groups - at the time the covenant was made, it was intended that the benefit should run with the land
- covenantee held a legal estate in the land to be benefited
- successor in title derives their title from the original covenantee
when does the burden of a covenant pass at common law?
it does not pass at common law - Austerberry v Corporation of Oldham [1885]
so what happens at common law?
a successor in title to the benefited land can sue for breach but only the original covenantor can be sued
when does the benefit of the covenant pass in equity?
requirements under Renals v Cowlishaw [1878]:
- covenant touches and concerns the land of the covenantee
- the benefit of the covenant was either:
> annexed to the land by express annexation, implied annexation or statutory annexation
>expressly assigned to the successor in title
>land in question is part of a building scheme
when does the burden pass in equity?
Tulk v Moxhay requirements:
- covenant must be restrictive
- covenant must touch and concern the land
- covenant must have been imposed to benefit land of original covenantee
- must have been intended to run with the land
- successor must have notice of the covenant - must be registered
what are the remedies available when there has been a successful claim to enforce a covenant?
- an injunction to prevent breach
- an order for specific performance - positive covenants only
- an award for damages in lieu of an injunction
what are the ways a positive covenant can be enforced?
chain of indemnity covenants to be undertaken by successive purchasers of the covenantor’s land
Halsall v Brizell - a positive covenant can pass if there is a corresponding benefit, the successor must choose to exercise the corresponding right - Thamesmead v Allotey
long leaseholds
commonhold schemes
where are the grounds on which the lands chamber is permitted to discharge or modify a restrictive covenant contained?
S84(1) LPA 1925
what are the grounds where a restrictive covenant can be modified or discharged? s84(1)
a) obsolescence - restriction has become obsolete due to changes in the character of property or neighbourhood
b) those benefiting agree to discharge or modification
c) those befitting will suffer no injury
what is another way that the benefit of a covenant can pass in equity?
under a scheme of development or a building scheme
