Covenants Flashcards
What is a covenant in land law?
A promise under seal (in a deed) relating to land, enforceable under contract law.
Who is the covenantor?
The party who makes the promise and bears the burden.
Who is the covenantee?
The party who benefits from the covenant.
What’s the difference between positive and negative covenants?
Positive requires action (e.g., maintenance); negative (restrictive) prohibits actions (e.g., no B&B use).
What is privity of contract?
A direct contractual relationship between the original parties to a deed or lease.
When does privity of estate exist?
Between landlord and tenant, including their successors, as long as the lease continues.
Can a covenant bind successors if there is no privity of contract or estate?
Only if it “runs with the land” under common law or equity (pre-2009) or LCLRA 2009 (post-2009).
What 3 conditions had to be met for the benefit to run at common law?
Covenant must touch and concern land
Successor must have a legal estate
Successor must have the same estate as the covenantee
What legislation presumed benefit would run?
Section 58(1) of the Conveyancing Act 1881 (repealed by LCLRA 2009).
Does the burden of a covenant run with land at common law?
No – it remains enforceable only against the original covenantor.
What is the principle in Halsall v Brizell?
A person who accepts a benefit must accept the corresponding burden (reciprocity).
What is a chain of indemnity covenants?
Each buyer covenants to indemnify their seller, indirectly enforcing original covenants.
What are the 3 main ways the benefit of a covenant can run in equity?
Assignment
Annexation
Local scheme of development
What is annexation?
When the benefit is permanently attached to the land and passes with it.
What is a local scheme?
A development where mutual covenants apply to all plots; enforceable between all lot owners.
What is the Rule in Tulk v Moxhay (1848)?
Restrictive covenants may bind successors if the covenant is negative, relates to retained land, and notice is given.
Has the rule in Tulk v Moxhay been abolished?
Yes – by Section 49 of the LCLRA 2009.
What did the LCLRA 2009 change about covenants?
Abolished pre-2009 rules and made covenants enforceable by and against successors in title.
Who can enforce a covenant under the 2009 Act?
The dominant owner or a former owner (for breaches during their ownership).
Against whom is a covenant enforceable?
The servient owner or their predecessor (if breach occurred before sale and wasn’t remedied).
What are the remedies for breach of covenant?
Injunction
Damages in lieu of injunction (Chancery Amendment Act 1858)
What case awarded damages in lieu of injunction?
Wrotham Park Estate v Parkside Homes [1974]
How could covenants be discharged before 2009?
Only with consent or under limited Registrar powers for registered land (ROT Act 1964).
What does Section 50 LCLRA 2009 allow?
A servient owner may apply to court to discharge/modify a freehold covenant.
What must be proven for discharge under S.50?
That the covenant causes “unreasonable interference” with the use of the land.
Can the court award compensation?
Yes – to the dominant owner if there’s a quantifiable loss from discharge.
