Freehold covenants

Question 1

What is the difference between a restrictive (or negative) covenant and a positive covenant?

Answer 1

Restrictive - an obligation negative in nature i.e. not to do something

Positive - requires covenantor to do some act

Question 2

Can a benefit of a restrictive covenant be enforceable by the covenantee’s successors in title?

Answer 2

Yes - if certain requirements are met

Question 3

What are the four requirements for the benefit of a RC to be enforceable by covenantee’s successors in title?

Answer 3

1. Covenant must touch and concern the land
2. Intention for the covenant to remain in effect
3. Covenantee held the legal estate when covenant was made
4. Covenantee’s successor in title now holds the legal estate

Question 4

Can a burden of a RC be enforceable at law against a subsequent purchaser of the burdened land?

Answer 4

No

Question 5

Can a burden of a RC be enforceable at equity against a subsequent purchaser of the burdened land?

Answer 5

Yes - if certain requirements are met

Question 6

What are the four requirements for a burden of a RC to be enforceable at equity against a subsequent buyer of burdened land?

(clue: for the last two - think about reg v unreg land)

Answer 6

1. Covenantee owned land at date of covenant
2. Burden was intended to run with the land
3. Registered land - covenant appears on the register; or
4. Unregistered land - covenant is a D(ii) Restrictive covenant

Question 7

What is the benefit and the burden (aka as Halsell v Brizell) rule?

Answer 7

A person cannot enjoy a benefit without accepting the burden that goes with it

Question 8

Generally, positive covenants are only binding on who?

Answer 8

The original contracting parties

Question 9

What is one way of making positive covenants enforceable against the covenantor’s successors in title?

Answer 9

Chain of indemnity covenant, where each successive buyer gives an indemnity to the previous owner to bear the cost of complying with the covenant