Covenants

Question 0

White v Bijou Mansions

Answer 0

Third parties who were not a party but on whom the original covenant conferred a benefit can bring an action, as if they were an original covenantee by virtue of s56 LPA

Question 1

Gafford v Graham

Answer 1

Difference, still, of suing at law or at equity

Question 2

Amsprop Trading v Harris Distribution

Answer 2

By virtue of s56 those who were identified as parties to the covenant but were not ‘a party to its execution’ can bring actions as original covenantees and pass their benefit

Question 3

Tulk v Moxhay

Answer 3

Where covenants turned from purely personal obligations governed by the law of contract to proprietary obligations governed by the law of real property

Question 4

Rhone v Stephens

Answer 4

Burdens of a covenant between freeholders can never ‘run’ i.e. bind a successor at law

Question 5

Swift Investments v Combines English Stores

Answer 5

Test for touching and concerning -

Question 6

Margerison v Bates

Answer 6

Even if the substance of the covenant could bind successive owners of land, if it is expressed personally towards a particular person then it will bind only that person

Question 7

Marten v Flight Refuelling

Answer 7

L Wilberforce stated that a covenant which expressly states that it is imposed for the purpose of affecting land will usually be upheld

Question 8

Whitgift Homes v Stocks

Answer 8

The covenant must have been imposed in order to benefit the land and the covenantee must have had land at the time the covenant was made and that land must be capable from benefiting from the land

Question 9

Tophams v Earl of Sefton

Answer 9

Statutory presumption that the burden will run unless it is said to the contrary per s79 LPA - this presumption can be stated in clear terms by exclusion in the deed

Question 10

Binion v Evans

Answer 10

The only time a covenant can be enforced when not registered by way of a notice is 1. When the land has been acquired by a purchaser not for value per s28 LRA and 2. Where the purchaser has only purchased an equitable interest in the land or has not registered their disposition

Question 11

Thamesmead Town v Allotey

Answer 11

Even if the D is liable for the covenant when all the conditions are met for it to ‘run’ then the remedy is still equitable and discretionary, so here they got damages instead of an injunction

Question 12

Rogers v Hosegood (benefit)

Answer 12

The benefit of the covenant must touch and concern the land of the original covenantee i.e. the covenant must relate to the use of the land and must not be purely personal - the test is the same as before - the benefit must also not be personal to the original covenantee like with the burden

Question 13

Re Gadd’s Transfer

Mellon v Sinclair

Answer 13

The land must be readily identifiable and capable of benefiting from the covenant
This must also be the case at the time the covenant is made, not at any point later

Question 14

Federated Homes v Mill Lodge Properties

Crest Nicholson v McAllister applying Marquess of Zetland v Driver

Answer 14

A covenant may also be annexed to the land by virtue of s78 of the LPA which has two conditions: 1. The land is capable of benefiting, 2. The land is identifiable by the deed
Number 2 was elucidated in Crest and Chadwick LJ applied the test from Marquess - the land must be easily ascertainable from the cov

Question 15

Whitgift Homes v Stocks (annexation)

Answer 15

Under s78 of the LPA there is an automatic annexation to each and every part of the benefited land for positive and negative covenants, which is very wide, however this can be excluded with a good draftsman

Question 16

Lamb v Midas Equipment

Answer 16

For the benefit to pass at equity - same as at law - in annexation, express or implied, it must be clear that the benefit is to endure for successive owners – here it was not clear enough – the land must also be easily identifiable like in Mellon and capable of benefiting from the covenant

Question 17

Roake v Chadha

Answer 17

An express exclusion of s78 of LPA will see the statutory presumption unincluded

Question 18

Chambers v Randall
Re Pinewood
Renals v Colishaw

Answer 18

A covenantee can assign, expressly or impliedly, the benefit of the covenant when he transfers the benefited land
It seems that this needs to be done each time the land is transferred
But earlier cases have said that doing it once annexes the benefit to the land

Question 19

Elliston v Reacher

Answer 19

Building scheme which builds on common intention and practicality and means that every purchasers’ benefit is mutually enforceable by the other purchasers - - NB the general rules here include intention when buying and separate plots of land – NB these rules are not inflexible and schemes have been accepted with vague plots

Question 20

Emile Elias v Pine Groves

Answer 20

Although the rules of building schemes are flexible, there much be mutuality of purpose, which means that covenants different in substance will not be upheld under a building scheme

Question 21

Whitgift Homes v Stocks (building schemes)

Answer 21

What is crucial for a building scheme is that the area subject to the scheme is defined with sufficient certainty – if there is uncertainty for any plots then it will negate the entire scheme

Question 22

Halsall v Brizell

Answer 22

The principle of benefit of burden - if you are to benefit from something you must also be prepared to be burdened by it

Question 23

Thamesmead Town v Allotey (mutual benefit and burden)

Answer 23

One can only be burdened by a benefit if that burden is intrinsically linked the benefit gained - it cannot be in respect of ‘general facilities’ - it is insufficient that the person ‘could’ take a benefit - the burden must be the ‘flip side’ of the benefit - therefore it means ‘I will give you X but you must pay for it’ not ‘I give you X and you give me Y’