Freehold Covenants Flashcards

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1
Q

What is a covenant & is it capable of being legal?

A

A covenant is a promise

  • Not to do something - or to do something which requires no effort or expense (restrictive covenant)
  • To do something (positive covenant)

Covenants are not capable of being legal interests - they can be equitable if in writing & signed by the covenantor

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2
Q

Who are the covenantor and covenantee?

A

Covenantor (owner of the servient land) MAKES the promise

Covenantee (owner of the dominant land) RECEIVES BENEFIT of the promise

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3
Q

What is the dominant land & servient land?

A

The dominant land enjoys the benefit of the promise (owned by the covenantee)

The servient land carries the burden of the promise (owned by the covenantor)

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4
Q

Can Amy, successor in title to the covenantee, enforce covenants against Bill, successor in title to the covenantor?

A

Depends if the benefit and the burdens of the covenants have passed to Amy and Bill respectively

Look at equity first, and then common law (because burden never passes at common law & remedies are preferable in equity)

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5
Q

What are the steps for establishing whether the benefit & burden of covenants have passed to successors in title?

A
  1. Does the burden pass at equity?
  2. If so, does the benefit pass at equity?
  3. Does the burden pass at common law? (Never does, ie. has this been circumvented?)
  4. Does the benefit pass at common law?
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6
Q

Does the burden of a freehold covenant pass in equity?

A

Burden passes in equity if the 4 conditions in Tulk v Moxhay are met:

  1. The covenant must be negative
  2. The covenant must accommodate the dominant tenement
  • The original covenantee & successor in title retained an interest in the land when the covenant was made (OC) & enforced (SIT)
  • Must be proximity (near enough that the dominant tenement benefits from a covenant on the burdened land)
  • Covenant touches & concerns the land (benefits any owner while they own the estate; makes the land more valuable somehow)
  1. Original parties intended that the burden should pass
  • Evidenced expressly by wording of the covenant (‘land known as The Manor’) or implied by statute (s.79 LPA 1925)
  1. The successor in title to the covenantor must have had notice
  • Registered land: entered as a s.32 notice on the charges register by the covenantee
  • Unregistered land: entered a Class D(ii) Land Charge
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7
Q

How can you tell if a covenant is negative?

A

It can be satisfied by doing nothing

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8
Q

What are the 4 conditions in Tulk v Moxhay that must be satisfied for the burden of a freehold covenant to pass at equity?

A
  1. The covenant is negative (ie. can be satisfied by doing nothing)
  2. The covenant accommodates the dominant tenement
  • Original covenantee & successor in title retained an interest in the land when the covenant was made (OC) & enforced (SIT)
  • Proximity (ie. near enough that dominant tenement benefitted by a covenant on the burdened land)
  • Covenant touches & concerns the land
    -Benefits estate owner while they own the estate
    -Makes the land more valuable somehow
    -Not expressly personal
  1. Original parties intended the burden should pass
  • Expressly, by wording (‘land known as The Manor’)
  • or implied by statute (s.79 LPA)
  1. The successor in title to the covenantor must have notice
  • Registered land: s32 notice on charges register by person with benefit of interest (ie. covenantee)
  • Unregistered land: Class D(ii) Land Charge
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9
Q

How can the successor in title to the covenantor have notice?

A

Registered land: s32 notice on the charges register by person with benefit of the interest (covenantee)

  • If not entered, purchaser for valuable consideration is not bound

Unregistered land: Class D(ii) Land Charge

  • If not registered, purchaser of legal estate not bound
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10
Q

(If the burden of a freehold covenant passes at equity) Does the benefit of a freehold covenant pass in equity?

A

Yes, if:

1) The covenant touches & concerns the land

2) Complies with the requirements in Renals v Cowlishaw: annexation, assignment, building schemes

ANNEXATION
* Express - refers to land itself + says it benefits each & every part
* Implied (rare)
* Statutory: s78 LPA automatically annexes benefit of covenant to each & every part of the dominant land if it touches & concerns the land UNLESS expressly or impliedly excluded

ASSIGNMENT
* Occurs on sale of dominant land where annexation has not taken place
* Must be in writing + signed by person transferring it

BUILDING SCHEMES - restrictive covenant attached to every plot in building scheme & enforceable by all people if:
* All purchasers acquire property from same vendor
* Vendor has divided the estate into plots prior to the sales
* The restrictive covenants were intended by the vendor to continue for the benefit of all plots
* Every purchaser acquires plot on understanding that the covenants benefit all other plots in the scheme

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11
Q

What is the difference between annexation & assignment & building schemes?

A

Annexation: the benefit of the covenant is permanently attached to the dominant land at the time of creation
→ ie. Every time the land passes, the benefit goes with it

  • Express (‘for the benefit of the land known as The Manor’)
  • Implied (rare)
  • Statutory - s78 LPA: automatically annexes benefit unless expressly or impliedly excluded

Assignment: benefit must be passed every time the land changes hands
→ ‘Relay baton’ - must be in writing & signed by person transferring

Building schemes: restrictive covenant can be attached to every plot within a building scheme & enforceable by all people - if

  • All purchasers acquire their property from the same vendor
  • Vendor has divided the estate into plots prior to the sales
  • Restrictive covenants were intended by the vendor to continue for the benefit of all the plots
  • Every purchaser acquires the plot on the understanding that the covenants benefit all other plots in the scheme
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12
Q

What is s78 LPA 1925 and can it be excluded?

A

Statutory annexation provision: automatically annexes the benefit of the covenant to each & every part of the dominant land if it touches & concerns the land

Can be expressly or impliedly excluded

  • Benefit not passing unless expressly assigned = excluded s78
  • Another method of passing benefit is set out = excluded s78
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13
Q

What are the requirements in Renals v Cowlishaw for annexation?

A

The benefit of the covenant is permanently attached to the dominant land at the time of creation

Can be created:

  • Expressly →refers to land itself & says it benefits each & every part (‘For the benefit of the land known as The Manor’, ‘For the benefit of X in their capacity as owner of the land known as The Manor’)
  • Impliedly (rare)
  • Statutory → s78 automatically annexes benefit unless expressly or impliedly excluded
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14
Q

What are the requirements in Renals v Cowlishaw for assignment?

A

Benefit must be passed every time land changes hands (‘relay baton’).

Occurs on sale of dominant land

Assignment is equitable interest so must be in writing + signed by person transferring it

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15
Q

What are the requirements in Renals v Cowlishaw for building schemes?

A

Equity allows a restrictive covenant to be attached to every plot within a building scheme & enforceable by all people if:

  • All purchasers acquire their property from the same vendor
  • The vendor has divided the estate into plots prior to the sales
  • The restrictive covenants were intended by the vendor to continue for the benefit of all the plots
  • Every purchaser acquires the plot on the understanding that the covenants benefit all other plots in the scheme
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16
Q

If the benefit and burden pass at equity, what is the effect?

A

The covenant is enforceable in equity

Possible remedies:

  • Injunction
  • Damages
17
Q

Does the burden of a freehold covenant pass at common law?

A

NO

The burden of a freehold covenant remains with the original covenantor

→ Can be circumvented by indemnity covenant or rule in Halsall v Brizell

18
Q

How can the rule that the burden of a freehold covenant does not pass at common law be circumvented?

A

Indemnity covenant (person who buys land from covenantor promises that if the original covenantor is sued for the breach, they will pay back for damages)

The rule in Halsall v Brizell (narrow)
→ Burden can pass if:
1) Must be a close link between the benefit & burden
2) Must be a choice
3) Must be conferred in the same transaction

19
Q

What is the rule in Halsall v Brizell (the doctrine of mutual benefit & burden)?

A

The burden of a freehold covenant at common law can pass if:

1) Must be a close link between the benefit & burden

  • ie. The burden is relevant to the exercise of the benefit (eg. burden = upkeep for drain; benefit = using drain)

2) Must be a choice

3) Must be conferred in the same transaction

20
Q

Does the benefit of a freehold covenant pass at common law?

A

There are 2 methods:

Method 1: Express Assignment

  • Benefit may be assigned (provided it is not purely personal)
  • Must be in writing + notice given to the covenantor

Method 2: Implied under P & A Swift v CES

I. Must touch & concern the land
- Benefit dominant land
- Only benefits estate owner while they own the estate - & not expressly personal
- Affects the value of the land in some way

II. Original parties intended the benefit to pass
- Express (‘for the benefit of the land known as’)
- Implied by s78 LPA

III. Original covenantee held legal estate (ie. freehold or leasehold)

IV. Successor in title has legal title

21
Q

When will the benefit of a freehold at common law pass under P & A Swift v CES?

A

Will be implied if:

I. Touches & concerns the land
- Benefits dominant land
- Only benefits estate owner while they own the estate - not expressly personal
- Affects value of land in some way

II. Original parties intended the benefit to pass
- Express (‘for the benefit of the land known as’)
- Implied by s78(1) LPA

III. Original covenantee held legal estate (ie. freehold / leasehold)

IV. Successor in title has legal estate

22
Q

If a freehold covenant is enforceable at common law, what is the possible remedy?

A

Damages only

(All covenants may be enforceable at common law, but positive covenants will only be enforceable common law)