Covenants Flashcards
Is a covenant capable of being legal?
No, only equitable.
How is a covenant created?
All terms in writing and signed. Can be created by contract, but more often created by deed.
What is a restrictive covenant?
A promise to not do something.
What is a positive covenant?
A promise to do something.
How does the burden of a covenant pass at common law?
It cannot. Only the benefit of a contract can be assigned, never the burden.
What are the 5 requirements in Tulk v Moxhay which allows the burden of a covenant to run in equity?
The covenant:
(a) must be restrictive;
(b) must be made to benefit the dominant land;
(c) must touch and concern the dominant land;
(d) must be made with the intent to burden the servient land;
(e) owner of servient land must have notice.
What is the three stage test for whether a covenant touches and concerns dominant land?
(i) must only benefit the dominant owner for the time of their land ownership;
(ii) must affect the nature, quality, mode of user or value of the dominant land; and
(iii) must not be expressed to be personal.
What are the 3 means of enforcing the burden of a positive covenant?
(i) Landowner can create a lease;
(ii) Original covenantor makes the new owner enter into an indemnity covenant, to indemnify the original covenantor for any potential breaches;
(iii) Mutual benefit and burden - if a person wants to take advantage of something, but they must comply with a positive covenant, this will bind.
What is the doctrine of mutual benefit and burden?
Say e.g. X wants to use the driveway of Y. That is a benefit. Connected to this benefit, is the positive burden of contributing to the maintenance of the driveway.
Though, X MUST be able to choose whether they take the benefit or renounce it.
This is one way how a positive covenant can bind.
How does a benefit run at common law via: Annexation? (Four requirements)
(a) covenant must touch and concern the land;
(b) intention that the benefit should run with the estate owned;
(c) covenantee must have legal estate in the benefited land;
(d) buyer of benefited land must take legal title in the benefited land
How does the benefit run in equity via: Annexation? (Three methods)
Express annexation;
Implied annexation;
Statutory annexation.
How does express annexation attach the benefit of a covenant to the land in equity?
The covenant should state an intention to benefit a defined piece of land. Not adequate for it to be for the benefit of the covenantee and their successors in title.
Practice: Include ‘each and every part’ to ensure it is annexed to the whole land.
How does statutory annexation attach the benefit of a covenant to the land in equity?
If:
(i) the covenant was created after 1925;
(ii) the covenant touches and concerns the land; and
(iii) the land that is to benefit is identifiable from a description in the transfer;
it is to attach to the land via statute.
What remedies are available for the breach of a positive covenant?
Damages - Often against the original covenantee if they have indemnity or a successor in title;
Specific performance - original covenantor can pay for the specific performance
What remedies are available for the breach of a restrictive covenant?
As it can only run with the land in equity, the principle remedy is an injunction.
Damages are awarded if a monetary award is feasible and can adequately compensate the claimant.
