Covenants

Question 1

Relationship of c’or and c’ee

Answer 1

Covenant’or is always the servient lands (the person who made the promise)
Covenant’ee is always the dominant lands (the person who the promise benefits)

Question 2

When the dominant land is sold, what is the test for common law rules?

Answer 2

1. Legal title AND
2. Common law remedies (damages) AND
3. Servient lands haven’t been sold

Question 3

When the dominant land is sold, what is the test for equitable rules?

Answer 3

1. Equitable title OR
2. Equitable remedy (injunction, performance) OR
3. Servient lands have also been sold

Question 4

When the servient land has been sold, when can you use common law rules?

Answer 4

You can’t

Question 5

When the servient land has been sold, when can you enforce a positive covenant? (+authority)

Answer 5

You can’t (Durham)
- for example, neighbour A has promised neighbour B that they will always keep a nice lawn. When neighbour A sells their house, the new owner can’t be bound by the positive covenant.

Question 6

Generally, what determines if a covenant applies to a new owner?

Answer 6

If it ‘runs with the land’ as opposed to a personal commitment.

Question 7

By default, do covenants between property owners transfer to new buyers if the property is sold?

Answer 7

No.

Question 8

When the servient land has been sold, what is the test to see if a negative easement applies?

Answer 8

1. The language shows that the covenant was intended to run with the land and isn’t a personal obligation
2. BOTH properties are clearly identified
3. The covenant “touches and concerns the land” (Galbraith)
4. New purchaser has notice
   - no notice needed for a gift
   - for a purchase of land, under the Land Registration Act s 61(1) if the property is registered the new owner is deemed to have notice of the covenant

Question 9

When dominant land is sold, common law rules to see if a covenant “runs with the land”

Answer 9

1. Original covenant’ee (dom owner) had legal title
2. New owner has same legal title
3. Parties intended to attach the covenant to the land, language like “to their heirs and assigns”
4. The covenant “touches and concerns” the land (Galbraith): it affects occupation or value of the land

Question 10

When dominant land is sold, equitable rules to see if a covenant “runs with the land”

Answer 10

1. The covenant “touches and concerns” the land (Galbraith): it affects occupation or value of the land
2. Parties intended to attach the covenant to the land, language like “to their heirs and assigns”
3. The dominant land is clearly identified in the covenant

Question 11

Dominant lands sold, owner had legal title, seeking injunction, servient lands not sold (which rules?)

Answer 11

Equitable, because seeking equitable remedy

Question 12

Dominant lands sold, owner had legal title, seeking damages, servient lands not sold (which rules?)

Answer 12

Common law

Question 13

Dominant lands sold, owner held land in trust for child, seeking damages, servient lands not sold (which rules?)

Answer 13

Equitable, because trust is an equitable title

Question 14

Dominant and servient lands sold, both held legal title, seeking damages (which rules)?

Answer 14

Equitable, because both properties sold. (would have to run both tests)

Question 15

Servient lands sold, previous owner promised to never build higher than 3 stories: “I the owner of 150 Nadia drive promise the owner of 187 Nadia and all their heirs and assigns to never build a house higher than 3 stories”.

Answer 15

Equitable rules, because negative easement

1. language showing attachment to property
2. both properties identified
3. “touches and concerns” the value of land
4. Notice to new purchaser by virtue of s 61(1) of the Land Registration Act