Freehold Covenants

Question 1

What are freehold covenants?

Answer 1

Promises to do something on the land such as maintain the garden (positive) or not do something such as not build an extension (negative). Apply hand in pocket test to determine if positive or negative.

Question 2

Covenantor

Answer 2

The person who is bound to carry out the promise of the covenant - they are subject to the burden.

Question 3

Covenantee

Answer 3

The person who makes and can enforce the covenant - they have the benefit of it.

Question 4

Passing of the burden of covenants in law

Answer 4

Under common law rules any covenant, either positive or negative, cannot run with the land. However Doctrine of mutual benefit - a person who wishes to take advantage of a service/ facility must also comply with the corresponding obligation.

Question 5

Passing the benefit of covenants in law

Answer 5

For the benefit of the covenant to run in law several conditions must be satisfied:
- The covenant must touch and concern the land;
- The original covenantee must have held legal estate in the benefitted land
- The successor in title must obtain their title from or under the original covenantee;
- The benefit of the covenant must have intended to run land by:
(A) express annexation
(B) implied annexation
(C) s78 LPA 1925

Question 6

Annexation

Answer 6

The benefit is permanently fixed to the land and so will pass automatically upon a future conveyance or transfer of the land.

Question 7

Express annexation

Answer 7

Express words are used in the deed that the benefit will pass to successors in title.

Question 8

Implied annexation

Answer 8

Court may be prepared to imply the benefit of the covenant will pass if the identity of the land being benefitted is sufficiently clear. This is used rarely.

Question 9

Statutory annexation

Answer 9

Every covenant which is held to touch and concern the land will automatically be annexed to the land in question, with the benefit of that covenant automatically passing to successors in title in equity. The covenant must have been created post 1925.

Question 10

Assignment

Answer 10

The benefit of a covenant may pass by express assignment. This must take place at the same time of the transfer of land. It must be in writing and signed by the assignor and written notice of the assignment must be given to the person with the burden of the covenant

Question 11

Passing the burden of covenants in equity

Answer 11

Equity - The burden of a restrictive covenant may pass in equity, providing that:
- the covenant is negative in nature
- the covenant must, at the time of a creation of the covenant, have been made to benefit the dominant land retained by the covenantee;
- the covenant must touch and concern the dominant land;
- the covenant must have been made with the intent to burden the servient land (intention can be express or implied if not specifically excluded); and
- the owner of the servient land must have notice of the covenant to bind them;

Question 12

Passing the benefits of covenants in equity

Answer 12

For the burden to pass in equity, it