Freehold Covenants Flashcards
Who can enforce the covenant
There is no problem between the original parties because there is privity of contract.
Passing of the benefit of a covenant at common law
The covenant must touch and concern the land of the Covenantee
The covenantee must own the legal estate in the land to be benefitted when the covenant was made
The successor of the Covenantee must have a legal estate
The original parties must have intended that the covenant should run with the Covenantee land
Passing of the burden at common law
The burden of a covenant cannot run with the land except:
1. S153 LPA 1925 provides for a lease which is for more than 300 years
2. Creation of a chain of covenants
3. The doctrine of mutual benefit and burden
4. An estate rent charge
5. By granting a lease rather than a fee simple absolute
Halsall v Brizell [1957]
The owners of houses had a covenant to use the road way in return for paying for repair and maintenance. The new owners did not want to pay but still wanted the benefit
Davies v Jones [2009]
3 requirements for the doctrine of mutual benefit and burden
1. The burden must be conferred in or by the same transaction as the benefit
2. The benefit must be conditional to the burden
3. The person who has the burden must have had the opportunity of rejecting the benefit
Running of covenants in equity
Tulk v Moxhay [1848]
Subject to certain conditions a covenant which is negative will run with the land so as to bind successors in title to the servient owner
Passing of the burden in equity Tulk v Moxhay [1848]
- The covenant must be negative in nature
- There must be benefitted and burdened land
- The covenant must touch and concern the benefitted land
- The covenant must have been intended to run with the Covenantors land
- Equitable interest
Passing of the benefit in equity
The covenant must have touched and concerned the Covenantees land
The original parties must have intended the benefit to run with the land
Annexation- express
That the covenant was taken for the benefit of certain land
That the covenant was made with the Covenantee in their capacity as owner of the dominant land
Annexation- implied
Two cases provide judicial support for the possibility of annexing a restrictive covenant by implication from the circumstances
Annexation- statutory
S78 LPA 1925 a covenant relating to any land of the Covenantee and his successor in title shall be deemed to be made with the Covenantee and his successors in title
This applies automatic intention for the benefit to be Annexed to the land.
Assignment
Miles v Easter [1933]
1. The covenant must benefit the dominant land
2. The land must be indicated in the conveyance or have been otherwise shown with reasonable certainty
3. The assignment of the covenant and the conveyance must be contemporaneous
4. The land must be retained in whole by the claimant and be capable of benefitting from the covenant
Building scheme
Elliston v Reacher [1908]
- Both the claimant and defendant must obtain title from a common owner
- The commons owner must have paid out a definite scheme of development
- Intention to impose a scheme
- Every purchaser bought the land knowing of the scheme
Birdlip v Hunter [2016]
A Court of Appeal set out characteristics of a building scheme
1. It applies to a defined area
2. Owners of properties purchased from a common owner
3. Each property is burdened by covenants were intended to be mutually enforcement
4. The limits are known to each of the purchasers
5. The common owner is bound by the scheme
6. Will bind future purchasers
Enforcement of a breach of covenant
The courts may award damages or an injunction.
Equitable remedies are discretionary
