freehold covenant Flashcards
what is a covenant?
it is a promise which is usually contained in a deed, although a deed is not necessary
how is a covenant validly created?
must be in writing and signed by guarantor
who is the covenantee?
person who receives the benefit of the promise. covenantee can sue if the covenant is breached
what is the dominant land?
land which is benefitted by the promise
who is the covenantor?
person who makes the promise, covenantor can be sued if the covenant is breached
what is the serviant land?
land which is burdened by the promise
who is the successor covenantee?
a new owner of the dominant land
who is the successor covenantor?
a new owner of the servant land
what type of interest is a restrictive covenant?
it is an equitable interest in land, it is a recognised proprietary right.
can a positive covenant pass the benefit and burden through equity?
no - it cannot, only restrictive covenants can pass through equity via benefit and burden
what is the hand in pocket rule?
hand in pocket test (Haywood v Brunswick) this is what decides what type of covenant it is: positive covenants require money, effort or time being spent
what are the 2 different ways that a mixed covenant can be done?
separate covenant = restrictive and positive covenant can be separated
as one obligation with a condition attached = cannot be split, into 2 separate obligations. interpreted as being overall positive or negative, depending on whether it obliges covenanter to do something. (eg, restrictive covenant with positive condition attached)
what is a mixed covenant?
promise which has positive and restrictive elements
what is the general rule for burdens of covenant?
burden of covenant don’t pass to successor at common law
what are the equity rules in Tulk v Moxhay?
- covenant must be restrictive
- covenant must accommodate the dominant tenement
- must be an intention for burden of the covenant to run
- notice of the covenant
what three things must be considered in a covenant must accommodate the dominant tenement?
- covenantee and successor covenantee must hold an interest in land at the time of the creation and enforcement
- covenant must touch and concern the land
- sufficient proximity between dominant land and servant land
how is notice of the covenant put on registered land?
covenant must be protected by the entry of a notice in the charges register of the servant title (LRA 2002, s32)
how is notice of the covenant put on the unregistered land?
covenant must be protected by a class D (II) land charge
what two things must be considered on equitable rules for benefit?
- burden passed to successor in equity
- benefit passed in equity
what is annexation?
at the time covenant is created, provided it occurs it will pass to each future owner of the land = common way to pass the benefit.
covenant is made in a way that benefits become a permanent part of the dominant land itself
what is assignment?
baton must be passed to each runner = each time the land is sold an assignment of the benefit must occur
assign when transferring the land = treated as a separate interest in the land
what are the 4 conditions of a building scheme set out in Ellison v Reacher?
- all buyers buy from the same seller
- seller divided the estate into plots
- covenant were intended to benefit all plots; and
- each buyer buys on the understanding that the covenant are intended to benefit all plots
what does discharge of a covenant mean?
means that it is no longer valid
what does modification of a covenant mean?
means that the scope of the covenant is altered, but it is not complete
if the same person becomes the owner of both the dominant and servient land - what are the repercussions?
covenant will automatically be discharged
