Covenants - SQE Short Notes Flashcards
Can Covenants be Legal?
No, Covenants are always equitable, even if made by deed.
However, the Covenant can pass to successors in title by Law or by Equity
What is the diffrence between a positive covenant and a negative covenant?
Positive Covenant
-Is a promise to do something
Negative Covenant
-Is a promise not to do something (restrictive)
Who will covenants bind?
A Covenant will always bind the original parties, but will only bind successors in title if both the burden and benefit passes at Law or Equity (and registered correctly)
What is the only way positive covenants pass?
Positive Covenants can only pass in law.
Covenants only pass in law where the Mutual Benifit Burden Pricniple applies, so hardly ever do.
What it the mutual burden benifit principle?
The Mutual Burden Benefit Principle means that someone cannot take a benefit without complying the burden - It is the only way positive covenants can pass to successors in title
* For example 'You must maintain the shared driveway.'
This is a positive covenant, and as the burden of maintaining the driveway comes with the benefit of being able to use it, the covenant can pass in law and be binding on the successor in title
What is the only way restrictive covenants pass?
Restrictive Covenants can only pass in Equity and almost always do pass owing to implied annexation s.76 LPA
What is implied annexation under s.76 of the Law of Property Act?
Any Covenant that touches and concerns the land (ie benefits the land rather than the person who owns the land personally)
Will be implied to be annexed (ie intended to be binding on all successors in title)
What is the best remedy for a breach of restrictive Covenants?
An Injunction
(Damages can also be claimed)
What is the best remedy for a breach of a positive covenant?
Specific Peformance
(Damages can also be claimed)
Who is the Covantoor and who is the coventee?
Covantor - Is the person who makes the promise (gives the promise and is burdened by it)
Coventee - Is the person with the benefit of the promise (Takes the promise)
What must be done for a covenant to be binding on successors in title in registered land?
- The Successor in title is a purchaser for valuable consideration (paying market price for the property)
- A notice has been registered against the title of the burdened land. This will then appear in the charges register of the title deeds.
What must be done for a covenant to be binding on successors in title in unregistered land?
Covenants created before 1st Jan 1926
-The Doctrine of Notice applies □ So, if you are aware (either actual notice, constructive notice (should have known if inspected title deed) or imputed notice (ie ur agent knows)
Covenants Created after 1st Jan 1926
- Must be registered as a Class D(II) land charge against the name of the original covenator , which would be registered as a notice against the burdened title upon first registratio
What type of Land Charge must the covenant be registered on the charges register for unregistered land?
A Class D(II) Land charge against the name of the original covenator
Where do covenants appear in title documents?
The Charges regsiter
What is an Indemnity Covennat for a breach of covenant?
Who can enforce them?
An Indemnity Covenant is a personal promise between the parties. Thus, if the covenant has not passed to the new owner but there is an indemnity covenant, the person with the benefit would need to sue the original coventoor, and the original coventoor can claim against the current owner (and the person in breach)
* For Example, Ben sells his house to Sam, and Sam Promises to keep the fence in good repair. * Sam Sells the property to Chloe, and Chloe Enters into an indemnity Covenant with Sam. Chloe fails to keep the fence in good Repair. * Ben cannot sue Chloe directly, because the positive covenant would not have passed to her. However, Ben can enforce the Covenant against Sam under privity of contract, and Sam can claim against Chloe for the breach of an indemnity covenant.
