Freehold Covenants Flashcards
What is a covenant?
A promise not to do something.
Is a covenant capable of being legal?
Not capable of being legal interest in land, they are not listed in s 1(2) of LA, and therefore EQUITABLE IN NATURE
What are the formalities required for covenants?
Writing and signed. Only equitable.
Can do it by contract.
Usually be deed, as it meets al formalities
Who is a covenantor?
Person who MAKES the promise, and has the burden of the covenant.
Who is the covenantee?
The recipient of the promise, who has the benefit of the covenant
Which land is burdened and benefitted?
Servient land is burdened by covenant
Dominant land is benefited from covenant
What is the difference between positive and restrictive covenants?
Positive covenant requires EFFORT or MONEY to perform obligation
Restrictive covenant requires no effort or expense.
Are covenants bound by privity of contract?
Yes, the original covenantor and covenantee are parties to a contract, therefore principles of contract and privity fo contract.
Means the liability of the original covenantor can LAST FOREVER, even after land has been sold.
What is the running of burden at common law for covenant?
Burden CANNOT PASS at common law/
Principle is based in contract. Only the benefit of a contract can be assigned.
To enforce a covenant against a successor in title, “would be to enforce a personal obligation against a person who has not covenanted”
What is the running of burden in EQUITY for covenant?
Burden of RESTRICTIVE covenant can pass, under Tulk v Moxhay, if conditions are met.
What are the conditions under Tulk v Moxhay, which allows a restrictive covenant burden to run in equity?
Covenant must be negative
Covenant must be made to benefit dominant land retained by covenantee (seller must retain some land)
Covenant must touch and concern the dominant land
Covenant must be made with intent to BURDEN the servient land (express or implied intention)
Owner of servient land must have notice of covenant for it to bind them.
What are alternative methods of enforcing a positive covenant?
They CANNOT run with land through common law or equity.
There are 3 devices evolved at common law where they can be enforced against successors in title or servient/burdened land:
Create a lease
Indemnity covenant
Doctrine of mutual benefit and burden
How can creating a lease allow a positive covenant to be enforced?
Instead of selling the land freehold, the landowner can create a leaes.
This ensures that positive covenants are enforceable, BUT leases are less attractive to buyers.
How can an indemnity covenant enforce a positive covenant?
An original covenantor REMAINS BOUND by their promise, through privity of contract.
When servient land is sold, only the burden of restrictive covenants pass.
Upon SALE, you can enter indemnity covenant, promising to observe positive covenants, and indemnify the seller for any loss incurred as a consequence.
This enables the original covenantor to sue their successor, and so on.
How can positive covenants be enforced through doctrine of mitral benefit and burden?
Dictates that a person who wants to take advantage of a service which benefits their land, must ALSO COMPLY with any corresponding obligation.
Therefore if positive covenant relates to a restrictive covenant, then BOTH pass.
