Covenants Flashcards
What is the difference between a covenant and a contract?
What do you need for a covenant? What must you establish to enforce it?
Main case?
In land law the burden and benefit of the covenant may pass, so in the court of equity, so the remedies available are equitable (damages most common, though injunctions are possible)
Covenants
Need 2 bits of land.
Only ever arise expressly, covenantor gives benefit to the covenantee.
Must establish that C has be fitted and D has burdened.
1. Liabilities between original parties?
2. Burden running?
3. Benefit running?
Can apply to have a covenant discharged if it is in the public interest.
Can have positive and negative (painting fence) covenants (not to build a house)
Tulk v Moxhay
For the burden to run what must be true?
ERTBIR (Tulk v Moxhay)
- Equity (Tulk v Moxhay)
- Restrictive
- Touch and concern land (Swift Investments v Combined English Stores)
- Benefitting the other land (Tulk v Moxhay)
- Intending to run or pass with the land (s.79 LPA 1925) (Roake v Chaddah)
- Registration (only need this is s.29 transfer) (Notice)
Which 3 cases would you use to illustrate that the burden of a covenant may only pass if it is a restrictive covenant?
Holland Park v Hicks
Court interpreted as a negative covenant (was negative as it stopped something happening and the neighbour had to agree)
Austberry v Oldham Corp
Only restrictive covenants may pass in the burdened land
Rhone v Stephens
Restrictive covenant burden may only pass in equity.
Law com 2011 wanted to reform this - wanted to change to make it possible for the burden of positive covenants to pass in equity too.
Note the easement of fencing - looks like a covenant but is really an easement (Crow v Wood)
Which case for touching and concerning the land (for the burden of a negative covenant to pass)?
What does touching and concerning the land mean?
Swift Investments v Combined English Stores
Must be about the land, can’t just be a personal obligation. Look at if it controls use or affects the value.
Example: covenant to not employ X on the land. Looks personal but was said to concern and touch the land as could stigmatise it.
Which case is the authority on the fact that the covenant must benefit the other land (for the restrictive covenant burden to pass in equity)?
Tulk v Moxhay
Need to check if benefitting the other land, rather than the other person.
Idea: stop personal obligations getting through.
What is the authority on the fact that the restrictive covenant burden must be intended to run or pass with the land?
S.79 LPA 1925: this states a PRESUMPTION that covenants are created to pass with the land. So here burden on D to prove the contrary.
Roake v Chaddah
Can use express words to avoid s.79 presumption that the burden will pass. Express words to rebut the presumption.
This case is also the authority on the fact that you can stop the benefit from annexing to the land (s.78) by use of express words to the contrary.
How may the benefit of a covenant pass?
In law or in equity.
But note that if the burdened land hasn’t passed then you can enforce against original covenantor in law or in equity. This will be the case if the covenant is positive (since only negative cov burdens may run)
If burdened land HAS passed (can only pass in equity (Tulk v Moxhay)) then can only enforce in equity.
What are the three rules for the benefit to pass?
- Legal or equitable interest in land? Need to det to see how to sue Y.
S.78 - they don’t need the same title as the covenantee. If an AP or licencee is trying to enforce then if the covenant is negative then they are deemed to have adequate title (as if by magic) so they can sue to enforce this restrictive covenant. This doesn’t work for positive covenants!
Can stop this by using express words (Roake v Chaddah) - Covenant must touch and concern the land
- X must actually benefit
A. Benefit can be expressly assigned with the land (e.g. Selling ticket to someone else - this reassigns the right to sue)
B. Annexation - s.78 annexes the benefit to each and every part of the land like magic
C. Building Scheme Rule
How does annexation work? What is annexation for? 3 cases?
Annexation needs to be shown to prove the covenant benefits the land and that the benefit of the covenant runs with the land.
Annexation can be express (“available to all successor in title”) or by statute. S.78 annexes the benefit to each and every part of the land like magic.
Federated Homes v Mill Lodge
S.78 annexes benefit onto each and every part of the land, so if splits into 4 then have 4 claimants.
Limitations:
Crest Nicholson v McAllister
For s.78 to work the covenant must IDENTIFY the land with sufficient clarity.
Roake v Chaddah
S.78 can be prevented through the use of express words.
What are the three cases on the Building Scheme Rule?
Preconditions set out in Ellistone v Reacher:
- Intention to build, where each plot has broadly similar obligations (plots on a map)
- Area building scheme must be completely certain (need max certainty of obligations)
Whitgift Homes clarified this - said the essence of a building scheme is mutuality so need certainty over its extent to clarify the obligations which are being created. Have to define the EXTENT of the building scheme in order to see the mutuality of agreement between plots.
- Obligations in substance must be broadly similar (don’t have to be identical)
Birdlip v Hunter 2015
Gives a review of the building scheme rule principles.
Emphasises that the extent of the estate has to be defined at the date of crystallisation of the scheme. The extent has to be defined so you can see the mutuality of agreement, exact plans don’t need to be defined.
Obligations in covenant between plots need to be broadly similar, they don’t need to be identical.
What is the law com reform point on covenants?
2011 law com report.
They want covenants to be created by deed and for them to be registered. This would simplify and streamline the law in this area.
By making them registrable it would also mean it is possible for the burden of positive
What is the workaround to make positive burdens pass? 3 cases?
The rule of mutual benefit and mutual burden
If want to take advantage of a benefit then have to pay for it.
Halzell v Brizell - road in an estate
Wilkinson v Kerdene - road in caravan park
Thamesmead Town v Allotley - tried to say that if want to use the lift then have to pay for the roof (rejected!)
