Covenants

Question 1

Smith and Snipes Hall Farm v River Douglas Catchment Board

Answer 1

A drainage authority covenanted with the freehold owners of land subject to flooding to repair and maintain flood prevention works. Drainage authority were not complying with covenant. The case involved an action for damages by the covenantee’s assignee and his yearly tenant. They successfully enforced the covenant. Issue: whether they could sue the covenantor, held the benefit of covenant will pass to successors in title of covenantee where certain conditions are satisfied:

1) The covenant must touch and concern the covenantee’s land
2) The covenantee must have a legal estate
3) The assignee must have a legal estate
4) The benefit of the covenant must intend to run with the land
5) The land must be identified in the document containing the covenant or other evidence.
6) Subdivision

Question 2

Swift (P & A) Investments v Combined English Stores Group Plc

Answer 2

“Touch and concern”

“(1) The covenant benefits only the [landowner] for the time being, and if separated from the [land] ceases to be of benefit to the covenantee.

(2) The covenant affects the nature, quality, mode of user or value of the land … covenantee land
(3) The covenant is not expressed to be personal …”

Question 3

Bryant Homes Southern Ltd v Stein Management

Answer 3

) Investments v Combined English Stores Group Plc [1989] AC 632: sets out what ‘touch and concern means’ this was a leasehold covenant case where the same test needs to be complied with and this definition has been adopted in freehold cases such as Bryant home Southern v Stein.

Question 4

Smith and Snipes Hall Farm

Answer 4

, showed that the covenant was to improve drainage and to prevent future flooding’s. In some situations, we can look at the wording and interpret this as showing an intention that the benefit was for the future owners as well.

Question 5

Miles v Easter

Answer 5

subdivision is fatal at common law.

Question 6

Federated Homes Ltd v Mill Lodge Properties

Answer 6

concerned benefit passing in equity, the view taken was that benefit which belongs to a whole area of land should be regarded as belonging to each and every part of that land so covenant should be enforceable with anyone who has part of this land. This was solely in passing of benefit in equity so can only use it to support argument in common law.

Question 7

Bryant Homes Southern Ltd v Stein Management

Answer 7

first instances case, action was against original covenantor by owner of part of covenantees land. The only issue before the court was whether the covenant touched and concerned the covenantees land and secondly the issue of subdivision of the covenantees original land. Judge applied dicta of Federated Homes v Mill Lodge. Unfortunately, it is not clear from his judgment whether he was applying common law rules for applying passing of benefit or equitable rules or both because he referred to ‘some but not all the requirements for the passing at common law, and some but not all the requirements for the passing in equity”. He later in judgment, the terminology and authority he used were more appropriate for the equitable rules. Therefore, may be useless authority due to lack of clarity, but the fact the judge felt that he did not need to distinguish clearly the common law and equity rules may suggest that the courts will take the same approach for both.

Question 8

Austerberry v Oldham Corporation.

Answer 8

burden of covenant at common law cannot be directly enforced against the successor in title

Question 9

Rhone v Stephens

Answer 9

Austerberry v Oldham Corporation has been approved by HL in this case.

Question 10

Austerberry v Oldham Corporation (CA)

Answer 10

the burden of a covenant cannot run with the freehold land of the covenantor. (Benefit of a covenant can run with the land of the covenantee). The common law rule of Austerberry has little practical importance in relation to restrictive covenants since the burden of such covenants can run in equity by virtue of the Tulk v Moxhay doctrine.

Question 11

Law Commission 127

Answer 11

The unenforceability of positive covenants has been criticised in reports. Law Commission 127 - There can be no justification for the fact that a simple positive obligation-to keep trees pruned to below a certain height, for example, or to maintain a boundary wall-cannot be imposed as a covenant running with the land.

Question 12

Austerberry v Oldham Corporation

Answer 12

The burden of a covenant cannot run with land at common law

Question 13

Rhone v Stephens

Answer 13

concerned property divided into two dwellings room of larger dwelling on top of smaller dwelling. There was a covenant to maintain room but this was not enforceable.

Question 14

Halsall v Brizell

Answer 14

A landowner owned a house on an estate. A deed granted to owners on the estate a right to use roads, sewers and promenade. In a separate clause the deed imposed an obligation to contribute to the cost of repair of the roads, sewers, promenade and sea walls. The obligation was not expressed to be a condition of the right. Each successor in title would use these rights to use roads. Issue: whether this successor should be liable to costs of repair of them. The landowner was a successor in title to one of the original parties to the deed. If use of roads was made conditional to contribution of costs then there is no doubt that anyone using the roads would have to contribute because it would have been a conditional right, but it was not. Held: if the landowner wished to take the benefit conferred by the deed (right to use the roads etc)he had to comply with the burden imposed by the deed. This was claimed to be an extension of an ancient rule relating to deeds. This case established the doctrine of benefit and burden. The Judge expressed the view that an obligation which is connected with a right, but not a condition of this right can be enforced by anyone who wants to use this right. Doctrine of benefit and burden developed from obiter comments of the judge. This have been held inapplicable more times than applicable.

Question 15

Tito v Waddell (No 2)

Answer 15

a benefit conferred by a transaction and a prima facia independent burden imposed by the same transaction may become linked, so that successors in title who wish to enjoy the benefit are bound also to assume the linked burden, even where that burden involves a positive obligation.

Question 16

Rhone v Stephens

Answer 16

Comments by CA and HL. HL limited the doctrine of benefit and burden to cases where:

1) The burden is ‘relevant; to the enjoyment of the benefit
2) Where the successor in title of the original covenantor has the opportunity, at least in theory, to renounce the benefit of the transation and thereby escape the burden.

Question 17

Halsall v Brizell

Answer 17

1) An arrangement/transaction which both confers a benefit and imposes a burden.

[deed] this arrangement was in a deed. Benefit and burden were in a deed. Is a deed necessary? There is lack of certainty.

Question 18

E.R. Ives Investments Ltd v High

Answer 18

1) An arrangement/transaction which both confers a benefit and imposes a burden.

– informal agreement. Doctrine was applied in this case where informal oral agreement. Since then it was commented by CA in Davis v Jones that where land is concerned it is almost inevitable that transaction will be in a deed or another document. This was referred to in Goodman v Elwood [2013].

Question 19

Halsall v Brizell

Answer 19

1) No other right to the benefit.

Because you are using the roads as authorised in the deeds, you must contribute to repair of those roads but if owner has some other right to use these roads, they do not have to rely on the deed. Have to show that successor is using the benefit, using the right.

Question 20

Halsall v Brizell

Answer 20

4) Benefit taken voluntarily; opportunity to reject it; ability to take it away.

right to use roads/sewers etc, in theory the owner of the house does not have to accept this. In practice, particularly the roads, the home owner will have to use it. However, for doctrine to apply it is enough that it is an option in theory.

Question 21

Rhone v Stephens

Answer 21

4) Benefit taken voluntarily; opportunity to reject it; ability to take it away.

The case involved a house divided into two separate dwellings. Part of the roof of the larger dwelling (known as the house) was above a bedroom of the smaller dwelling (the cottage). There was a covenant to maintain the roof entered into by the original owner of the house. The question was whether covenant was enforceable against his successors in title. The only relevant benefit was the mutual rights of support enjoyed by the owners of both properties. Claim failed in HL for many reasons, but the owner of the house had no choice as to whether or not he accepted the benefit of the right of support, the other property was there. This right of support could not be taken away. Nothing was expressly said in Halsall v Brizell about the seawalls, CA in Thamesmead Town Ltd v Allotey, expressed view that doctrine could not apply to the seawalls.

Question 22

HL in Rhone v Stephens.

Answer 22

1) Burden relevant to the exercise of the right: said in HL in Rhone v Stephens. - Another ground for decision that the doctrine did not apply because held that the burden (obligation to maintain the roof) was unconnected with the exercise of the right (right of support). Requirement that burden is relevant to the benefit has been supported in a number of CA decisions.

Question 23

Tito v Waddell (No 2).

Answer 23

Obligation to restore land on a Pacific island at the end of mining leases. The benefit in this case was rights to mine a Pacific island, obligation was to restore land on this island after the end of mining operations.

Question 24

E.R. Ives Investments Ltd v High

Answer 24

Neighbouring landowners entered into an informal agreement allowing the foundations of a block of flats built by one neighbour to trespass onto the other’s land in return for that other acquiring a right of access over the land on which the flats were.

Question 25

Davies v Jones

Answer 25

Seems to be less restrictive. CA said benefit must be relevant to the imposition of the burden in the sense that it must be conditional on or reciprocal to the burden, this is a question of construction. This suggests that parties can make a benefit and burden connect together, but this was a brief discussion.

Question 26

E.R. Ives Investments Ltd v High

Answer 26

predates Rhone v Stephens and is not referred to in either. While the owner of the block of flats took the benefit of the arrangement (having trespass foundations) then this owner was subject to the burden (right of access). The circumstances of the agreement make it obvious that the parties intended there to be a link between benefit and burden, agreement was only reached when found foundations were trespassing. Agreement only dealt with foundation and right of access. Therefore, court found a link between the two. But if we think of the restrictive approach in Rhone v Stephens, if we take this as a separate requirement, you cannot say that allowing a right of access is relevant to having trespassing foundations. Therefore, if relevant to exercise of right is a separate requirement (not one which helps establish the link) then Ives Investment would not be decided the same today.

Question 27

Goodman v Elwood

Answer 27

No need for registration

CA confirmed that burden does not require registration in order to be enforceable against successors in title.

Question 28

Thamesmead Town Ltd v Allotey

Answer 28

Property on the Thamesmead estate. Obligation to pay a fair proportion of the costs of maintaining and repairing the roads, footpaths, sewers, cables, landscaped and communal areas; defendant had no rights to the landscaped and communal areas. D refused to pay bill for cost of repair for all those items because he did not have access to some of these areas. CA held that he only had to pay proportion of bill relating to repairs to those areas to which he had those rights.

Question 29

Wilkinson v Kerdene.

Answer 29

Holiday village. Fixed annual amount payable for the repair of roads, car parks, pleasure grounds and other recreational facilities. They had not all been repaired; the landowner said he only used the roads and footpaths he did not use other facilities ; and in part the sum covered the cost of repair of facilities over which he had no rights. The sum could not be apportioned as it was not related to the costs of repairs. Whereas in Thamesmead Town v Allotey the sum could be apportioned because repairs had actually been carried out, therefore bills for repair could be apportioned. Whereas, in Wilkinson v Kerdene the sum bore no relation to any actual costs for repairs, it was a sum to pay for repairs as should be needed, therefore it was not possible to apportion it between particular facilities.

Question 30

Goodman v Elwood

Answer 30

– Same judge in Wilkinson v Kerdene expressed view that if land is subdivided so successor in title only owns part of land of original the landowner then he should only pay part of any repair bill.

Question 31

Tulk v Moxhay

Answer 31

At common law, the benefit passes easily but burden does not. The equity rules will be useful in relation to the passing of the burden

The case concerned a covenant to keep land in Leicester Square free from buildings. It was held that this bound a purchaser from the covenantor because he knew of it. The point was made that it would be wrong and unconscionable if a covenantor could agree to be bound but then sell the land on the next day at a higher price because the purchaser would not be bound. This decision was based purely on fact that purchaser knew of covenant when he brought the land. The decision was held to be unlimited on its application but later cases have imposed restrictions for when the burden of a covenant will bind a purchaser of covenantor in equity.

Burden of covenant will be enforceable to successors in title in equity : Tulk v Moxhay.

Question 32

Rhone v Stephens (HL).

Answer 32

(1) Burden only runs with land with restrictive covenants not positive covenants. Courts do not think it is appropriate to pass the positive burden to successors. Attitude of courts with regard to restrictive covenants is different. View of courts is that by enforcing restrictive covenants against successor in title they are merely preventing the successor from doing something which he never had the right to do anyway.

Question 33

London CC v Allen

Answer 33

Covenantee must have had land at the time the covenant was created.

CC had imposed covenant in planning permission, but the CC held no land which would benefit from this covenant so it could not be enforced against a successor in title.

Question 34

Morells of Oxford Ltd v Oxford Utd FC

Answer 34

Where s79 applies, covenants after 1925, the presumption is that the burden is intended to rule unless it is clear that s79 is excluded. The exclusion of s79 does not have to be express, it can be implied

Question 35

Morells of Oxford Ltd v Oxford Utd FC

Answer 35

A conveyance contained two covenants, one referred to successors in title, the other did not. The court took the view that the clear difference in wording between the two covenants was deliberate. Therefore, as one covenant refers to successors in title and the other deliberately does not, it would be inconsistent with the intention behind the conveyance to read s79 into the covenant which did not refer to successors in title. The court held that there was a deliberate difference between the covenants, they referred to fact that if it is just inconsistency in drafting, if drafting was not deliberate, then s79 may still reply.

Question 36

Tulk v Moxhay

Answer 36

Purchaser was bound because purchased with notice of the covenant.

Question 37

Miles v Easter

Answer 37

Not possible to mis equity rules and common law rules.

Question 38

Rogers v Hosegood

Answer 38

Suggested mixing equity rules and common law rules.

But not true.

Question 39

Marquess of Zetland v Driver

Answer 39

authority that Land must be defined in the deed.

Question 40

Crest Nicholson Residential (South) Ltd v McAllister

Answer 40

CA discussed the justification for this requirement. They said that purchasers of the covenantors land need to be able to identify the land benefitting from the covenant so that they can identify who can enforce the covenant.

Question 41

Rogers v Hosegood

Answer 41

There must be a link between benefit and the land.

A covenant not to build more than one dwelling was expressed to made with the intent that it would “enure to the benefit of [the vendors] their heirs and assigns and others claiming under them all or any of the lands adjoining.” This was sufficient for annexation because reference to successors in title AND land.

Question 42

Renals v Cowlishaw

Answer 42

There must be a link between benefit and the land.

A covenant was expressed to be made with the vendors and their heirs, executors, administrators or assignees. There was no reference to any land that they should be successors to. This could have been successors in title to anything. This was not sufficient to anything because no link with land.

Question 43

Re Ballard’s Conveyance

Answer 43

The benefit of a covenant not to build was purportedly annexed to the Childwickbury Estate which extended to about 1,700 acres. Judge thought that the covenant only touched and concerned only a small proportion of this estate so claim of annexation failed.

Question 44

Marquess of Zetland v Driver

Answer 44

if covenant was express to be for the benefit for the whole and any parts of the land, or similar wording then the covenant could be enforced by someone who had just part of the land as long as this land benefited from the covenant.

Question 45

Federated Homes Ltd v Mill Lodge Properties

Answer 45

More flexibility in relation to subdivision was suggested. He expressed the view that where a benefit is annexed to land, it should be assumed that it is annexed to each and every part of that land unless the contrary is expressed (this was dicta).

Question 46

Bryant Homes Southern Ltd v Stein Management

Answer 46

Judge said it is a question of construction of the covenant but there is a presumption that it is annexed to each and every part, this presumption can be rebutted expressly but the judge in Bryant Home accepted that it could be impliedly rebutted if the wording of the covenant made it clear that the benefit was for either the whole of the covenantees land or the bulk of covenantees land and not just odd bits which might have been sold off.

Question 47

Marten v Flight Refuelling

Answer 47

Implied annexation is implied from dicta in this case. Benefit will be annexed to land where it is clear from the conveyance construed in the light of surrounding circumstances that the covenant is to benefit particular land. Dicta because it was the original covenantee which sought to inforce the original covenant. Trying to imply from circumstances that there is an implied annexation, there is some doubt to its existence because there is no cases decided on it.

Question 48

Crest Nicholson v McAllister

Answer 48

CA described annexation in terms appropriate only to implied annexation, but CA were of view that implied annexation was only relevant to covenants created before 1st January 1926. It is not going to be needed for covenants after 1925.

Question 49

Federated Homes Ltd v Mill Lodge Properties Ltd.

Answer 49

provided covenant relating to land of the covenantee (wording of s78) which means a covenant which ‘tocuhes and converns’ land of covenantee, the s78 reads words into covenant and these words are sufficient for annexation. This was obiter.

Question 50

Federated Homes Ltd v Mill Lodge Properties Ltd

Answer 50

The case concerned three plots of land: the blue, green and red land. They were originally in common ownership. On a sale of the blue land the vendor imposed a covenant to the effect that no more than 300 houses could be built on that land. By different routes the plaintiff had acquired ownership of the green and red land. In relation to the green land there was a chain of express assignments of the benefit of the covenant giving the plaintiff the right to enforce the covenant. There was no such chain in relation to the red land. The covenant was expressed to be for the protection of retained land which was further defined as any adjoining or adjacent property retained by the vendor. Land had been annexed by s78, wording made it clear that the covenant related to land.

Question 51

Federated Homes Ltd v Mill Lodge Properties

Answer 51

Covenant that touches and concerns the covenantee’s land

Question 52

Roake v Chadha

Answer 52

No contrary intention.

– Held: s78 does not operate contrary to the intention of the parties and that if it is clear from the covenant that the benefit is not intended to pass then it will not. In Roake v Chadha, terms of covenant was that benefit would be passed by assignment, this was sufficient to prevent annexation;

Question 53

Crest Nicholson v McAllister

Answer 53

– CA approved Roake v Chadha and referred to wording of s78 and referred to definition of successors in title, this made it clear that there can be a contrary intention

Question 54

Crest Nicholson v McAllister

Answer 54

Identification of the covenantees land in the deed.

Covenantees land has to be identified in the deed (decision in Crest. Identification of land to benefit AND for the benefit to be made clear that it is for the land. S78 apparently satisfies this second requirement (benefit of land), it does not replace the first requirement that the land has to be identified in the deed, we can presumed from Federated Homes that the benefit will be annexed to each and every part of the covenantees land that benefits from it.

Question 55

Sainsbury Plc v Enfield LBC

Answer 55

Covenant created on or after 1st January 1926

Statutory annexation is only available for covenants created on or after 1st January 1926. S78 which gives statutory annexation, the predecessor of s78 is worded differently. Held: the earlier section does not have the same effect only s78 has that effect.

Question 56

Statutory annexaion requirements

Answer 56

Covenant that touches and concerns the covenantee’s land:

2) No contrary intention:
3) Identification of the covenantees land in the deed:
4) Covenant created on or after 1st January 1926:

Question 57

Assignment

Requirements:

Answer 57

1. Assignment with the covenantee’s land or part.
   2) Covenant originally made with the intention of benefiting covenantee’s land.
   3) Land ascertainable.

Question 58

Newton Abbott Co-operative Society Ltd v Williamson & Treadgold

Answer 58

Assignemnt

Land ascertainable - covenantn must have been intended that it should benefit the land and land must be capable of being benefited

THIS CAN BE ESTABLISHED BY SURROUNDING CIRCUMSTANCES

Question 59

Birdlip v Hunter

Answer 59

6 characteristics for scheme of development.
BABELO

1) It applies to a defined area
2) Owners purchased their properties from a common owner.
3) (1) Each of the properties is burdened by covenants which were intended to be mutually enforceable as between the several owners.
4) The limits of that defined area are known to each of the purchasers.
5) (1) The common owner is himself bound by the scheme, which crystallises on the occasion of the first sale of a plot within the defined area, with the consequence that he is not entitled to dispose of plots within that area otherwise than on the terms of the scheme.
6) (1) The effect of the scheme will bind future purchasers of land falling within the area, potentially for ever.

Question 60

Birdlip v Hunter

Answer 60

were concerned with 3rd and 4th requirements. Lewison thought that the intention and the area needs to be readily ascertainable without having to undertake laborious research, it has to be easy for future purchasers to find. In these cases, the existence of scheme and geographical area needs to be found in conveyance itself or other transactional documents, ideally you want a map or a verbal description. His view was that if there was nothing clear in the documents then there needs to be clear evidence to show a scheme of developments, one example is where the owner of the defined area of land intends to sell all the plots on it at the same time because if he intends to sell all properties at the same time then any covenants imposed will not benefit him because he is not keeping any of the land and therefore the only point of taking covenants would be that they are mutually enforceable.

Question 61

Baxter v Four Oaks Properties

Answer 61

. The plots were not laid out in advance: V was prepared to sell whatever size of plots Ps wanted, so had not laid out the plots in advance. As long as you know the total area of the scheme. Lewison was of the view that if the plots were laid out from the outset, this helps the third of the requirements.

Question 62

Re Dolphin’s Conveyance

Answer 62

There was here not only a failure to lay out the land in plots, but also there were two separate vendors. However, there was a clear intention of a mutually enforceable scheme. Held: you can have a scheme of devleopemnet where there are two developers in that land.

Question 63

Burden passing in equity

Answer 63

1) Restrictive covenant
2) covenant must have been intended to benefit land (touch n concern)
3) Burden intended to run with covenantee’s land
4) Registration where appropriate

Question 64

Express annexation requirements

Answer 64

1) Deed
2) Deed must identify land
3) The covenant must benefit the land (not personal).

Question 65

Statutory annexation requirments

Answer 65

1) Covenant touches and concerns the land
2) No Contrary intention
3) identification of land in deed.
4) created after 1926

Question 66

Doctrine of benefit and burden requirements

Answer 66

1) An arrangement/transaction which both confers a benefit and imposes a burden.
2) A benefit which is real and substantial: CA in Rhone v Stephens.
3) No other right to the benefit.
4) Benefit taken voluntarily; opportunity to reject it; ability to take it away.
5) link between the benefit and burden.
6) Burden relevant to the exercise of the right

Question 67

Passig burden in equity - registeration

Answer 67

Unregistered land
1) D(2) Land charge on the land charges register - s2(5)(ii)

Before 1925 - doctrine of notice

Registered land
1) Entry of a notice on charges register - s32 LRA 2002.