Covenants

Question 1

Does the burden of positive covenants pass?

Answer 1

Under equity –> No

Under common law –> only if doctrine of mutual benefit and burden applies. If it does not apply, then burden does not pass and original covenantor is liable (unless they get an indemnity from their immediate successor)

Question 2

Does the burden of a restrictive covenant pass?

Answer 2

Under equity –> Yes, if the four conditions are met.
1. RC must touch and concern the land
2. RC must accommodate the dominant tenement – land must benefit and lands must be sufficiently proximate.
3. Must be intention for RC to run with the land – statutorily assumed
4. Notice of the covenant - to bind disponee for value
Registered land - Notice on the Charges Register
Unregisted land - D(II) on Land Charges Register

Question 3

Does the benefit of a covenant run with the land?

Answer 3

In equity – Yes if covenant touches and concerns the land (annexation is automatic upon sale of land)

In common law – Yes if
1. covenant touches and concerns the land
2. intention for benefit to pass – implied
3. original covenantee had legal estate in land at the time of creation
4. successive covenant has legal estate in land at the time of enforcement

Question 4

Who is a covenantee?

Answer 4

Who receives the benefit of the land

Question 5

Who is a covenantor?

Answer 5

Who receives the burden of the land