Freehold Covenant

Question 1

Benefit to pass at common law

Intention for covenant to run implied

Answer 1

S78 LPA 1925

Question 2

Burden to pass at common law

Cannot pass

Answer 2

Austerberry v Oldham

Question 3

Burden to pass at common law

Exception: mutual benefit and burden - successor in title will not be able to take the benefit without the corresponding burden

Answer 3

Halsall v Brizell

Question 4

Benefit to pass in equity

Express annexation - words in the covenant must not be merely personal to future owners but must refer to passing to the benefitted land of future owners

Answer 4

Rogers v Hosgood

Question 5

Benefit to pass in equity

Statutory annexation

Answer 5

S78 LPA 1925

Question 6

Benefit to pass in equity

A covenant that touches and concerns the land will automatically pass, so long as the benefitted land is clearly identified in the covenant and s78 has not been expressly excluded.

Answer 6

Federated Homes v Mill Lodge

Question 7

Benefit to pass in Equity

Building scheme requirements

• Claimant and defendant purchased land from common vendor
• common vendor sets out plots of land in advance of sale, with common restrictions to be imposed
• common restrictions were to be imposed and for the benefit of all lots intended to be sold or retained
• Claimant and defendant purchased plots knowing common restrictions were to endure through their purchases

Answer 7

Elliston v Reacher

Question 8

Burden to pass in equity

Must comply with requirements below:

• negative in nature (pocket test)
• benefitted and burdened land must exist
• covenant must touch and concern the land
• intention for burden to run (s79 implies unless contrary wording)
• protection by registration - class D2 land charge if unregistered or by notice if registered

Answer 8

Tulk v Moxhay