Freehold Covenant: Equity Flashcards
Under what conditions will equity recognize that the benefit of a covenant passes to the successors of the covenantee?
Equity will recognize that the benefit of a covenant passes to the successors of the covenantee when:-
- the covenant “touches and concerns” the land of the covenantee, and
- the benefit of the covenant has passed to the successor either by express assignment or by annexation (express or implied).
How can the benefit of a covenant be passed to a successor in equity?
The benefit of a covenant can be passed to a successor either through
1. Express assignment: at the time of transfer of the land or
2. Annexation: which can be express, indicated within the deed, or implied, such as under section 78 of the Law of Property Act 1925.
What is implied annexation and how is it achieved according to section 78 of the Law of Property Act 1925?
Implied annexation occurs when the benefit of a covenant is deemed to pass to successors in title without express wording in the deed, as facilitated by section 78 of the Law of Property Act 1925.
This section deems that the benefit of covenants relating to any land of the covenantee shall pass to successors, assuming the covenant touches and concerns the land.
What did the case Federated Homes Ltd v Mill Lodge Properties Ltd establish regarding implied annexation?
In Federated Homes Ltd v Mill Lodge Properties Ltd, the court held that for implied annexation of a covenant’s benefit, it is sufficient that the covenantee had land capable of benefiting from the covenant at the time the covenant was made.
The case interpreted section 78 broadly, suggesting the benefit of a covenant is annexed to every part of the land, unless a contrary intention is expressed.
What does Crest Nicholson Residential South Ltd v McAllister illustrate about the application of section 78 of the Law of Property Act 1925?
Crest Nicholson Residential South Ltd v McAllister emphasizes the importance of being able to clearly identify the land intended to benefit from a covenant for section 78 of the Law of Property Act 1925 to apply.
The Court of Appeal held that for section 78 to annex the benefit of a covenant, the land intended to be benefitted must be defined in such a way that it is easily identifiable, with sufficient definition provided within the conveyance itself.
How does the case of Mohammad Zadeh v Joseph differ in its approach to identifying land intended to benefit from a covenant?
The case of Mohammad Zadeh v Joseph took a less stringent approach to the identifiability of land intended to benefit from a covenant.
The court held that it was “obvious” the covenants were intended to protect and enhance the enjoyment, use, and value of the retained land, even though this land was not expressly or implicitly identifiable from the conveyance itself.
This case suggests that a broader view of intent and context can suffice to establish benefit annexation.
How did Brightman LJ interpret section 78 of the Law of Property Act 1925 in Federated Homes Ltd, and what were the key views?
Brightman LJ considered three interpretations of section 78 in Federated Homes Ltd:
- Word Saving: Rejected as inconsistent.
- Intended Benefit: Requires evidence that the land was intended to benefit.
- Touch and Concern: Favored interpretation; if a covenant touches and concerns the land, it’s annexed, allowing successors to enforce it.
Brightman LJ preferred a broad approach, emphasizing that if a covenant touches and concerns the land and is enforceable by successors, it runs with the land.
Give the name and date of the case described below
After a company restricted development on a parcel of land to no more than 300 properties, the new owner attempted to exceed this limit. The plaintiff, owning adjacent land benefiting from the covenant, sought enforcement. The court held that the land was sufficiently described and, per section 78 of the Law of Property Act 1925, the benefit of the covenant could be annexed to every part of the land, enabling the plaintiff to enforce the building restriction.
Federated Homes Ltd v Mill Lodge Properties Ltd[1980]
Give the name and date of the case described below
A company sold plots of land with restrictions on how they could be used, including not allowing more than one house per plot. Later, plans to build five new houses led to a dispute with a neighbor, M, who argued that these plans violated the restrictions that should apply to her land too. The case focused on whether the restrictive covenants were legally tied to M’s property and could be enforced by her to prevent the new construction. The court decided that the restrictions were not legally tied to M’s land, meaning she couldn’t enforce them to block the new houses.
Crest Nicholson Residential (South) Ltd v McAllister [2004]
Give the name and date of the case described below
In a dispute over the sale of part of a garden, restrictive covenants were imposed without specifying which land would benefit. The court held that it was ‘obvious’ that the covenantswere to protect and enhance the enjoyment, user and value of the retainedland, although this land was not identifiable expressly or by implication fromthe conveyance itself.
Mohammad Zadeh v Joseph[2008]
Give the name and date of the case described below
In the mid-19th century, a piece of land in London was sold with a covenant to maintain it as an open garden and pleasure ground, free from buildings. The buyer agreed to this condition. However, when the land later came into the possession of another individual who was aware of the covenant but whose conveyance made no explicit reference to it, and who proposed to build on the land, the original seller sought to enforce the covenant to prevent development. The court faced the decision of whether an equitable covenant could be enforced against a successor in title who had notice of the covenant. This case established the principle that equity could enforce such a covenant against successors who have notice, amidst societal tensions between the desire for land development and the preservation of residential amenities through private covenants.
Tulk v Moxhay (1848) 2 Ph 774
Following the ruling in Tulk v Moxkay, what four conditions allow the burden of a covenant be enforced in equity against a successor in title?
The covenant
1. must be restrictive in nature,
2. touch and concern the covenantee’s land,
3. have an intention (express or implied) for the burden to run with the land, and
4. be properly registered.
The quotes below are examples of what?
‘tothe intent that the burden of the covenants will run with andbind the property and every part of it’
‘so as to bind the property hereby transferred’.
Express intention that the burden should run with the covenantor’s land.
This is one of three requirements for the burden of a covenant to run in equity.
How does the law imply that the parties intentended the covenant to run with the land in absence of express intention?
Unless contrary intention is expressed in the deed, s 79 LPA 1925 implies that the parties intended the burden of the covenant to run with the land.
What are the procedural requirements for a valid restrictive covenant?
Unregistered Land: Class D(ii) Land Charge on Land Charges Register before the date of completion of a sale to a successor.
Registered Land: IARE, notice on the charges register before registration of thesuccessor as the new proprietor.
