freehold covenant

Question 1

what is a covenant?

Answer 1

it is a promise which is usually contained in a deed, although a deed is not necessary

Question 2

how is a covenant validly created?

Answer 2

must be in writing and signed by guarantor

Question 3

who is the covenantee?

Answer 3

person who receives the benefit of the promise. covenantee can sue if the covenant is breached

Question 4

what is the dominant land?

Answer 4

land which is benefitted by the promise

Question 5

who is the covenantor?

Answer 5

person who makes the promise, covenantor can be sued if the covenant is breached

Question 6

what is the serviant land?

Answer 6

land which is burdened by the promise

Question 7

who is the successor covenantee?

Answer 7

a new owner of the dominant land

Question 8

who is the successor covenantor?

Answer 8

a new owner of the servant land

Question 9

what type of interest is a restrictive covenant?

Answer 9

it is an equitable interest in land, it is a recognised proprietary right.

Question 10

can a positive covenant pass the benefit and burden through equity?

Answer 10

no - it cannot, only restrictive covenants can pass through equity via benefit and burden

Question 11

what is the hand in pocket rule?

Answer 11

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

Question 12

what are the 2 different ways that a mixed covenant can be done?

Answer 12

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)

Question 13

what is a mixed covenant?

Answer 13

promise which has positive and restrictive elements

Question 14

what is the general rule for burdens of covenant?

Answer 14

burden of covenant don’t pass to successor at common law

Question 15

what are the equity rules in Tulk v Moxhay?

Answer 15

1. covenant must be restrictive
2. covenant must accommodate the dominant tenement
3. must be an intention for burden of the covenant to run
4. notice of the covenant

Question 16

what three things must be considered in a covenant must accommodate the dominant tenement?

Answer 16

1. covenantee and successor covenantee must hold an interest in land at the time of the creation and enforcement
2. covenant must touch and concern the land
3. sufficient proximity between dominant land and servant land

Question 17

how is notice of the covenant put on registered land?

Answer 17

covenant must be protected by the entry of a notice in the charges register of the servant title (LRA 2002, s32)

Question 18

how is notice of the covenant put on the unregistered land?

Answer 18

covenant must be protected by a class D (II) land charge

Question 19

what two things must be considered on equitable rules for benefit?

Answer 19

1. burden passed to successor in equity
2. benefit passed in equity

Question 20

what is annexation?

Answer 20

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

Question 21

what is assignment?

Answer 21

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

Question 22

what are the 4 conditions of a building scheme set out in Ellison v Reacher?

Answer 22

1. all buyers buy from the same seller
2. seller divided the estate into plots
3. covenant were intended to benefit all plots; and
4. each buyer buys on the understanding that the covenant are intended to benefit all plots

Question 23

what does discharge of a covenant mean?

Answer 23

means that it is no longer valid

Question 24

what does modification of a covenant mean?

Answer 24

means that the scope of the covenant is altered, but it is not complete

Question 25

if the same person becomes the owner of both the dominant and servient land - what are the repercussions?

Answer 25

covenant will automatically be discharged