Freehold covenants

Question 1

What is a freehold covenant?

Answer 1

They are promises expressly made between neighbouring freeholders. They are often created when a seller sells part of his land but retains the rest of it. Nature of freehold covenants is that they last indefinitely.

Question 2

Types of covenants

Answer 2

Positive covenant = requires them to take action – ask yourself whether the person giving it will have to ‘put his hand in his pocket’
Negative/restrictive covenant = doesn’t require them to take any action

Question 3

The original covenantee benefit at common law

Answer 3

The general contract rule is that only the parties to a contract may sue or be sued on it – privity of contract. It is possible for the original covenantee to enforce any express covenant against anyone who has the burden of the covenant including successors in title in accordance with the principles.

Question 4

The original covenantor burden at common law

Answer 4

The original covenantor will remain liable for breach of covenants relating to the land after selling his land due to privity of contract.

Question 5

Successors in title - The running of the benefit at common law

Answer 5

The benefit of both positive and restrictive covenants will pass to successors of the covenantee at common law in one of two ways:
a) By express assignment
b) Automatically if certain conditions are met

Question 6

Successors in title - The running of the benefit at common law - Express assignment

Answer 6

Written notice of the assignment must be given to the person with the burden of the covenant. Separate document the moment you sell the land.

Question 7

Successors in title - The running of the benefit at common law - Automatically

Answer 7

Relating to any land passes automatically.

Question 8

Successors in title - The running of the benefit at common law - Automatically - Requirements

Answer 8

1) Must ‘touch and concern’ the land.
2) Both the original covenantee and the person now seeking to enforce the covenant must have a legal estate in the land.
3) The original parties must intend that the benefit of the covenant is to run with the land.

Question 9

Successors in title - Running of the burden at common law - General rule

Answer 9

At common law the burden does not run.

Question 10

Successors in title - Running of the burden at common law - Exceptions

Answer 10

1) Chain of indemnity
2) Limited application - only where the covenant is a positive one. The principle is that a successor in title who takes the benefit of rights, eg easements, contained in a deed must accept the burden of covenants contained in the same deed.

Question 11

Successors in title - Running of the benefit in equity

Answer 11

Equity will recognise that the benefit of a covenant will pass to successors of the covenantee where:
a) The covenant ‘touches and concerns’ the land of the covenantee – therefore personal covenants don’t pass.
b) The benefit of the covenant has passed to the successor of the covenantee either by express assignment or by annexation – 2 routes

Question 12

Successors in title - running of the benefit in equity - Express assignment

Answer 12

It is possible for the benefit of a covenant to run with the land in equity as a result of an express assignment of the benefit at the same time as the transfer of the land to a successor.

Question 13

Successors in title - running of the benefit in equity - Annexation

Answer 13

This provision deems that the benefit of covenants relating to any land of the covenantee shall pass to successors in title.

Question 14

Successors in title - The running of the burden in equity

Answer 14

Must have notice of the covenant

Question 15

Successors in title - The running of the burden in equity - Conditions

Answer 15

a) Restrictive
b) Must ‘touch and concern’ the land of the covenantee
c) The parties must have intended the burden to run with the covenantor’s land.
d) the covenant must be registered in the appropriate register.

Question 16

Covenantor - definition

Answer 16

A person with the burden of the covenant

Question 17

Covenantee - definition

Answer 17

The person who benefits from the covenant

Question 18

Remedy for breach of restrictive covenant

Answer 18

Injunction

Question 19

Remedy of breach of positive covenant

Answer 19

Specific performance

Question 20

Positive covenant and running with the land

Answer 20

A positive covenant will not pass at equity

Question 21

Doctrine of mutual benefit

Answer 21

Enforcing the burden of a positive covenant - if the covenant benefits them and this is conditional on the positive covenant then it will pass

Question 22

How to know if it will be under common law or equity

Answer 22

If we’re talking about the burden passing to a successor we need to look at equity for both the covenantor and the covenantee. Additionally, if it is anything to do with them selling the land and it passes to someone else or if they’re looking at going after someone.

Question 23

When to use the common law

Answer 23

Only relevant when suing the original covenantor

Question 24

When to use equity

Answer 24

If any other person (anyone other than the original covenantor) is the defendant, the claimant will be suing in equity

Question 25

Express annexation - What is it

Answer 25

Where words of annexation are used. These are words which make it clear that the covenant is for the benefit of certain land or words which make it clear that the covenant is intended too endure for successive owners of the land

Question 26

Implied annexation - what is it

Answer 26

Express words are not used but it is still possible for the court to identify the benefitted land by looking at the circumstances. Where the facts indicate with certainty the land which is to be benefitted.

Question 27

Statutory annexation - what is it

Answer 27

The benefit of covenants created after 1925 will usually run to successors in title. Unless a contrary intention is shown the benefit will now run.

Question 28

using a building in a specific way

Answer 28

restrictive covenant