Covenants

Question 1

Burden of a covenant cannot run in common law. If covenantor sells the servient land, the purchaser is not bound

Answer 1

Rhone v Stephens

Question 2

Burden can run in equity. 5 conditions

Answer 2

Tulk v Moxhay

Question 3

Burden in equity requirement 1:

covenant must be negative in nature, test is if covenantor has to spend money

Answer 3

Rhone v Stephens

Test from Newton Abbot Cooperative Society v Williamson & Treadgold

Question 4

Burden in equity requirement 2:
Covenant must touch and concern the dominant land; must affect “nature, quality, mode of use or value of covenantee’s land”

Answer 4

Per Lord Oliver in P&A Swift Investments v Combined English Stores

Question 5

Burden in equity requirement 3:

Covenant must have been made to benefit land (covenantee must have land to benefit from it)

Answer 5

London CC v Allen

Question 6

Burden in equity requirement 4:

Must be intended that burden of covenant runs with the land. This will be presumed

Answer 6

s. 79 LPA 1925

Question 7

Burden in equity requirement 5:
Covenanteee must register his interest.
In registered land, a restrictive covenant should be protected by means of notice against title of servient land to bind purchaser.

Answer 7

s. 29 LRA 2002

Question 8

Benefit can run in both common law and equity.

4 conditions to run at law.

Answer 8

As burden cannot run at common law, someone claiming a benefit in law can only sue the original covenantor

Question 9

Benefit in law requirement 1:

Covenant must “touch and concern” the land of original covenantee

Answer 9

Rogers v Hosegood

Question 10

Benefit in law requirement 2:
Claimant must have legal estate in the land (though need not be same legal estate as original covenantee, i.e. could be leaseholder with original covenantee as freeholder)

Answer 10

s. 78 LPA 1925: for the purposes here, adverse possessor is considered as having a legal estate in the land

Question 11

Benefit in law requirement 3:

It is intended that benefit should pass with the land retained by covenantee. Will be implied unless expressly excluded

Answer 11

s. 78(1) LPA 1925

Question 12

Benefit passing in equity method 1, Annexation:
Express. For express annexation, covenant must identify the land which is to benefit and it must be stated to be made for the benefit of the land

Answer 12

Rogers v Hosegood

Question 13

Annexation may be implied from the surrounding circumstances

Answer 13

Marten v Flight Refeulling

Question 14

Annexation may be implied from the surrounding circumstances

Answer 14

Marten v Flight Refeulling: Where an owner of land, on selling part of it, sees fit to impose a restriction and expresses that restriction as being for the benefit of the land which he retains, the court will normally assume that it is capable of doing so.

Question 15

Annexation may be implied from the surrounding circumstances

Answer 15

Marten v Flight Refeulling: Where an owner of land, on selling part of it, sees fit to impose a restriction and expresses that restriction as being for the benefit of the land which he retains, the court will normally assume that it is capable of doing so.

Question 16

Statutory annexation: effect of s. 78 LPA 1925 is to automatically annex the benefit of the covenant to the covenantee’s land, if the benefiting land is subdivided after the covenant is made, express annexation to each part of the original land will occur without contrary intention (1)
(2) but this can be avoided by express contrary intention

Answer 16

1. Per Brightman LJ in Federated Homes v Mill Lodge Properties
2. Roakee v Chadha

For 1: It is only required that: the covenant touches and concerns the benefitted land, as per the test laid out in Swift Investments v Combined English Stores Group , and the land benefitted is expressly identified in the covenant, according to Crest Nicholson v McAllister.

Question 17

Assignment (express or implied):
The original covenantee may expressly assign the benefit of covenant to another person. Required that covenant was made with intention of benefitting the covenantee’s land and that the benefitted land is identifiable.

Answer 17

Newton Abbott Co-operative Society v Williamson & Treadgold

Question 18

Building Schemes:
Situation where everyone buys a plot in a building scheme, burdening their land. Conditions tend to include:
Intention to lay out the land in plots; obligations are substantially the same; physical maximum area of the scheme must be known; there must be an intention that the obligation should be mutually enforceable

Answer 18

Whitgift Homes v Stocks and Birdlip v Hunter, developing on Elliston v Reacher

Question 19

Remedies:
A court may substitute damages for an injunction of the injunction would be impressive, but court has discretion in choosing remedies. Damages would be more appropriate if claimant is suing original covenantor for benefit that passes in law

Answer 19

Discretionary per Jaggard v Sawyer