Freehold Covenant

Question 1

what are freehold covenants?

Answer 1

promises extracted by one freehold owner (the covantee) from another freehold owner the (coventot), whereby promsis either pos cov or negative cov something over his land.

Question 2

what is the land burderened by the promise?

Answer 2

servient tenement

Question 3

what is the land benefitting from the promise?

Answer 3

dominant tenemant

Question 4

when do covenants commonly arise?

Answer 4

when a freeholder is selling part of his freehold to another and wishes to maintain some degree of control over the land being sold in order to preserve the value and enjoyment of land he is retaining

Question 5

Typical freeholder?

Answer 5

Freeholder A severs a parcel of his freehold land and sells/transfers it to B.
A, at time of Transfer extracts a covenant (set out in the Transfer Deed or other Deed) from B, whereby B covenants (promises) to use the land he is buying in a certain way or more typically covenants not to use it in a certain way.

Question 6

example?

Answer 6

include restricting the ability to build on the land/restricting how the land can be used.

Question 7

what does this covenent amount to form?

Answer 7

Such covenants effectively amount to a form of private planning control
however despite the development of this area of law , they have not eradicated the need for public planning controls.

Question 8

Freeholder B promises A , e.g:

Answer 8

Not to build on the land transferred, or to keep the –
-land transferred in an ‘open state’, free from development, (Tulk v Moxhay [1843] 2 Ph. 773.

• Not to carry on trade or business on the land transferred.
• Not to use the land to house students
• To erect and maintain a wooden boundary fence 6 ft in height, between between the land of the transferor and land of transferee.

Question 9

what should you not confuse?

Answer 9

freehold cov with leasehold cov - where promises are constracted between landlord and tenant.

Question 10

what can the parties agree? & what do covs relate to?

Answer 10

The parties can agree to whatever covenants their like.

All the covenants relate however to B’s user of the freehold land he has acquired.

Question 11

what is the key area of focus in an exam q?

Answer 11

enforcement - Between the original parties, i.e A and B all the covenants are enforceable as a contract.

Question 12

between the original parties to cov?

Answer 12

If B breaches the covenants he has given, A can claim damages or an injunction (discretionary).-

privity of contract exists between the original covtor and covtee- should the covtor breach his cov, the covee can enforce breach using normal conctructual principles

Question 13

when can generally the parties enforce?

Answer 13

parties to deed/contract can enforce the terms of that deed/contract subject to two exceptions

Question 14

a third party not named in doc creating cov may enforce a cov if satisfies rules under either? (2excep)

Answer 14

1. s56 lpa 1925 - person,not party to contract (3rd) may sue upon it provided the cov was purported to be made with him, rather than simply confer a benefit upon an unidentifiable 3rd party- re exxlesiatical commisioners for englands conveyance case - the third party must be identifiable at time of teh creation of the cov done, consequently a cov made with successors in title would not benefit those future owners of the land, at time cov was made they are not identifiable - kelsey v dodd

once benefit of cov had been acquired this way by 3rd party not named in deed of creation, he is treated same way as covtee and may pass the benefit to his succesor

Question 15

what is the 2nd excep?

Answer 15

contracts (rights of third parties) act 1999

applies to contracts entered into on/after 11 may 2010- under s1 1 - a third party may enforce terms of a contract to which he was not a party where

• the contract expressly provides he can
  a term of contract purports ben on him

thus a party other than original covtee may be able to enforce terms of cov. to do so cov must have named this person or identified them as a member of class- successors in title would suffice- this person need not have ben in existence when the covenent was created

Question 16

Historical perspective of this?

Answer 16

Prior to World War II, covenants between freeholders were a main control on land use and development – a sort of private planning law.
After World War II a comprehensive system of Public Planning Law was introduced, where planning permission was and is often required from Public Planning Authorities in order to develop land/change land use etc.

Question 17

what about noawadays?

Answer 17

Nowadays, a person wishing to develop land will have to normally obtain public planning permission from his local authority and also deal with any private law freehold covenant restrictions which may affect the land in question.

Question 18

what must enforcement between successors in title do?

Answer 18

must demonstrate the burden and benefit of the covenants passed

Question 19

BTW SUCCESSORS IN TITLE- what is meant by the benefit of the cov?

Answer 19

even after the dominant and servient lands have passed to successors in itlte, the cov are still enforceable btw the original parties due to their contractual rels.

hw an orginal covtee is unlikely to take action to stop subsequent breaches since, no longer owning the dominant land, he will not suffer any loss resulting from these breaches

-it is his successor in title and the current owner of the dominant land, who will be effected by the breach and will wish to take action, this will only be poss id he can establish the benefit of the covant being breached passed to him when he took over the dominant land.

Question 20

what is meant by the burden of a cov?

Answer 20

although the original cov remains liable for subsequent breaches commited after he transffered the servient tenement to a succesor, he may not be the best person to pursue the breach since:

• he may be diff to trace and if he can be found, any remedy obtained against him would be limited to damages as he no longer owns the servient tenement
• pursuing him would provide little motivation for the successor actually comitting the breach to stop - unles the idemnity cov btw himself and the original coventor -indem covenants

rather the succesor in title, the current owner of teh servient tenement and the person actually comitting the breach should be pursued. hw it will only be poss to do so if it can be estbalished that the burden of teh cov passed to him upon the transfer of the servient tenement

Question 21

what must you be able to do in the exam?

Answer 21

identify:
original parties
respective successors in title
and how if it at all benefit/burden as approp of teh cov has passed to the successors

Question 22

what are successors in title?

Answer 22

the 3rd party contarct to a not b who have contract with a

Question 23

what is a covantee?

Answer 23

person in whose favour a covenent is made and thus who has the benefit of cov and may enforce if it is breached

Question 24

what is a covantor?

Answer 24

the person from whom cov is extracted and thus who has burden of the obl

Question 25

servient tenement?

Answer 25

piece of land this burdened by a proprietary right

Question 26

dominant tenenement?

Answer 26

piece of land this benefited by a proprietary right

Question 27

what is a covenent?

Answer 27

a promise made by deed - either requiring someone to do something ie or not to do something = neg

Question 28

tip?

Answer 28

first look to enforce against successors in title in eq- this more likely to assist wth passing of burden of cov to a successor in title of servient land in comon law- anything which cannot be enforced using eq can be considered IN COMMON LAW

Question 29

Change of Land Ownership- What if Freeholder B sells his land to X ? COMMON LAW? - passing the burdern in comm

Answer 29

Will X be bound by the freehold covenant/user restriction ?

At Common Law: No

The burden of a freehold covenant does not run with the land at common law so as to bind successors in title: Austerberry v Oldham Corp (1885) 29 ChD; Rhone v Stephens [1994] 2 AC (HL); Thamesmead Town v Allotley [1998] 3 EGLR 97.

comon law- burden of cov will never pass to successor of servient land - austerberry. whislt the cov may remain enforcable against orgiinal coventor at common law, this will have little practical benefit for the person seeking to enforce the cov

Question 30

Change of Land Ownership- What if Freeholder B sells his land to X ? IN EQUITY? - passing the burdern equity?

Answer 30

burden will pass In Equity: Yes, IF certain conditions are met, (the ‘Tulk v Moxhay Rules’) viz:

equity will allow burden of cov to pass from an owner of the servient ten to his successor in title - meet 4 conitions- tulk

Question 31

what are the four condition is eq?

Answer 31

1. cov must be negative in nature
2. the cov must accomodate the dominate land
3. the original parties must have intended for the burden to pass with the servient land
4. the purchases of teh servient land must have had notice of the cov

Question 32

what is meant by cov must be negative in nature?

Answer 32

(i) the Covenant must be negative (restrictive) in nature vis a vis Servient land/Covenantor’s land.
- compliance with cov should not require action/expenditure of money - haywood v brunswick permanent benefit building society - this is a question of substance not form

Question 33

e.g of must be neg in nature?

Answer 33

e.g a cov not to allow a brick wall to fall into disrepair, whilst worded negatively, will require action, i.e maintence work-if it is to be complied with - therefore a positive cov

Question 34

what if a covenent appears to be mixed?

Answer 34

if mixed with both pos and neg- either a- the postive ele of cov may be served (if this is possible) from negative component allowing the latter to pass the first hurdle of tulk or b)- court will decide which comp of cov is dominant and this will determine the overall status of the cov

Question 35

what is meant by the cov must accomodate the dominant land?

Answer 35

3 components must be met
1.the Covenantee (A), must at the time of the covenant and thereafter, own land for the benefit of which the covenant is made, LCC v Allen [1914] 3 QB 642.- can enjoy ben of cov at time etc

2. -) the Covenant(s) must ‘touch and concern the land’ of the covenantee (dominant land), (i.e not be ‘personal’, but relate to land user, see P & G Swift Investments v Combined English Stores [1989] AC 632, Rogers v Hosegood [1900] 2 Ch). - it must not be expressed as being personal to the orgiinal covantee and must be such as to affect the land as regards mode of occupation or value, in the sense that the owner of that land gets more from his land by teh reason of cov being attached - smith

a cov which only provides a benefit to a person ehilst owning the dom land and is of no benefit to that person once they have given up ownership is likely to be seen as one that touches and concerns- pa swift

3. there must be sufficient proximity btw dom and serv lands-roger v hose head

Question 36

what must you remember?

Answer 36

cov benefits the dominant land-

Question 37

extra marks for touch land?

Answer 37

-

Question 38

what is meant by the orgiinal parties must have intended for the burden to pass with servient land?

Answer 38

iv) It must have been the ‘common intention’ of the parties to the covenant(s)’ that the burden of the covenant shall run with the land so as to bind a successor in title (X), s.79(1)LPA 1925.

this could be in expressed wording of cov- e.g the covenator covenents on behalf of himself and his successors in title or

post 1st jan 1926 such words will be implied by cirtue s.79 pa 1925, subject to contrary intention

Question 39

what is meant by the purchaser of the servient land must have had notice of teh cov?

Answer 39

this is essential a q of reg land

(v) Registration Requirements must have been complied with i.e covenant must have been protected by Notice on burdened land (B’s).
(i. e In Unregd. Land Class D(ii) Land Charge against B’s name).

Question 40

notice for reg land?

Answer 40

-

Question 41

What if Freeholder A sells his land to Y ?

Can Y pick up the right to sue and enforce the freehold covenant(s) ?

Answer 41

Yes, If certain conditions are established, the benefit of freehold covenant(s) can pass to Y :

(i) The covenant(s) must ‘touch and concern the land’ of the covenantee.
(ii) Transmission of the Benefit to Y must be in one of the following ways:

Question 42

what is Transmission of the Benefit to Y must be in one of the following ways: aka?

Answer 42

passing the benefit of cov

Question 43

what must we remeber?

Answer 43

where burden of land passed in eq- the benefit of cov must also pass in eq to teh successor of the dom land for him to be in position to enforce breach -miles v easter

Question 44

passing the ben of cov IN EQUITY?

Answer 44

will work if:

• cov is one which touches and concerns land
  -cov passed either by :
  annexation
  express assignment
  scheme of develop

Question 45

passing the ben of cov IN EQUITY?*

Answer 45

will work if:

• cov is one which touches and concerns land
  -cov passed either by :
  annexation
  express assignment
  scheme of develop

Question 46

what is expressed annexation?

Answer 46

(c) Express Annexation
The covenant can be enforced by successor in title of the benefiting land, if there are ‘words of express annexation’ in the language of the covenant, see Rogers v Hosegood (above), Marquess of Zetland v Driver [1939] Ch.

Question 47

what is statutory annexation?

Answer 47

(a) Statutory Annexation
Automatic annexation by virtue of S.78(1)LPA, Federated Homes v Mill Lodge Properties Ltd [1980] 1 WLR (CA), unless wording of particular covenant requires another method of transmitting benefit, see Roake v Chada [1984] 1 WLR.
For S.78 to apply however dominant/benefiting land must be clearly ‘identifiable’ from conveyancing documents, Crest Nicholson v McAllister [2004] 2 All.E.R 991 (CA).

Question 48

what is express assignment?

Answer 48

(b) Express Assignment of the Benefit of the Covenant
By S.136(1) LPA, like the benefit of a contract can be assigned, the benefit of a freehold covenant can be assigned to Y by A, if A simply gives written notice to this effect to B.

Question 49

what is scheme of development?

Answer 49

(d) Scheme of Development/Building Scheme
If building scheme is established, then the benefit is transmitted to purchasers of the dominant land under the scheme. Typically used where new estate built, many freehold houses sold, land laid out lots ‘local law’ established.
Requirements for a building scheme:
See Elliston v Reacher [1908] 2 Ch. Parker J:
(original rules).

Question 50

what are modern day req of building scheme cases?

Answer 50

Modern Day requirements of a Building Scheme, Re Dolphin’s Conveyance [1970] Ch.654; Baxter v Four Oaks Properties Ltd [1965] 1 Ch 816; Lund v Taylor (1975) 31 P & CR 167:

Question 51

what are the modern day requirements?

Answer 51

• The area to be affected by the scheme has been properly ‘identified’.
• It was clearly intended to set up a scheme of ‘reciprocal’ enforcement of obligations /land laid out in lots with identical covenants.

Question 52

Birdlip v Hunter (2015)?

Answer 52

Here it was stated that the extent of the development to be within the scheme must be defined when the scheme crystallises

Question 53

passing the burdern of cov at common law?

Answer 53

-

Question 54

what ways have been developed in comm law

Answer 54

-

Question 55

what mus you do when answering prob q?

Answer 55

need to consider these methods of enforcement at common law for those cov which are not enforcable in equity. this will especially apply to those pos cov whose burdens will not pass to teh successors in title in equity as a result of falling at the first hurdle under tulk (positive cov relies o common law the other one=neg(

Question 56

Remedies for breach of freehold cov?

Answer 56

(i) Injunction - EQ AND COMMON
A party wishing to seek to enforce a restrictive freehold covenant can claim an injunction.
Wakeham v Wood [1982] 43 P & CR 40
Bungalow built in breach ordered to be demolished.

-If injunction ‘oppressive’ damages can be awarded in lieu or if there is unreasonable delay in coming to court, (laches) see: Shelfer v City of London Electric Lighting Co [1895] 1 Ch.287. See also: Regan v Paul Properties Ltd [2006] EWCA Civ 1391.
If damages are awarded in lieu, measure is based on the cost which could have been charged for covenantee to agree a release, Wrotham Park Estates Co Ltd v. Parkside Homes Ltd [1974] 1 WLR 798; Jaggard v Sawyer [1995] 1 WLR 269.

(ii) Damages
If an injunction is refused equitable damages in lieu under S.50 Supreme Court Act 1981 can be awarded.

Question 57

Discharge of Freehold Covenants?

Answer 57

(i) Agreed Release By Deed or Contract (CT) (S.2 LP(MP)A 1989).
(ii) S.84 LPA 1925 (as amended by LPA 1969)

Question 58

by court discharge?

Answer 58

Application to the Upper Tribunal (Lands Chamber) for covenants to be modified or discharged on one or more of the following 4 grounds:

Question 59

what following sit may they be granted?

Answer 59

• covenant has become ‘obsolete’ ‘due to changes in character of the property or the neighbourhood or other circum stances
• the continued enforcement of the covenant would be ‘obstructive to some public or private use of the land’ and ‘covenant confers no practical benefit’ or is ‘contrary to the public interest’ and any ‘loss can be compensated with money’.
• both parties have ‘consented’ to the modification or discharge- expresly impliedly
• the modification/discharge would ‘confer no injury on person entitled to benefit’.

Question 60

when is the power usually excercised?

Answer 60

mainly where the restriction has become ovbsolete. where the lands chmaber agree to discharge/modify restriction to has the discretion to require a compensation payment to the owner of the domiannt land.

Question 61

rule in halsall v brizell?

Answer 61

As noted gen. rule: burden of positive covenants cannot run at common law nor in equity under Tulk v Moxhay Rules

One exception is the case of Halsall v Brizell (above). The burden of a positive covenant can be made binding on a purchaser of the burdened land i.e X, where there is a ‘reciprocity of benefits and burdens’.

In Halsall, a purchaser of land was given the right to use various roads on a neighbouring estate, provided he contributed to their upkeep.
It was held that as long as chose to make use of the access route (easement) he must take the land subject to the correlative positive burdensome covenant, to contribute towards their upkeep.
Even though paying for upkeep was a positive covenant, it was hand-in glove with the easement of vehicular access - ‘You take the rough with the smooth in life’.

Question 62

BACK TO AT COMMON LAW-

Answer 62

-