Freehold Covenants Flashcards
When does the benefit of a covenant pass at common law?- 4 requirements
1.touches and concerns the land
2.made with an intention to run-s.78
3.estate was held by covenantee
4. title is deprived from original covenantee
‘touches and concerns’- common law for the benefit- case law
P & A Swift Investments [1989]
common law- burden
does not pass- Austerberry v Corporation of Oldham [1885]
equity- burden- case
Tulk v Moxhay [1848]
The burden of which cov(S) will pass in equity?
- restrictive
2.covenantor must have owned the land - intention to run-s.79
4.clean hands
doesn’t require the expenditure of money
Haywood [1848]
equity-benefit- criteria
1.annexation
2.assignment
3.building scheme
what does s.56 (1) LPA tell us?- provide case law
named covenantees- Re Ecclesiastical Commissioners [1936]
s.56 does not set aside rules of privity of contract- case law
Smith and Snipes Hall Farm [1949]
Express annexation- wording
‘for the benefit of ‘named land’’- Rogers v Hosegood [1900]
Express annexation cannot be for the benefit of X and his successors- case law
Renals v Cowlishaw [1878]
Implied Annexation
Marten [1962]
Statutory Annexation
Federated Homes Ltd [1980]-s.78 LPA
when would s.78 not come to annex the benefit of a covenant in equity? + case law; clue- intention
if parties didn’t intent for it to run- Crest Nicholson [2004]
Assignment of (benefit at equity)
Re Pinewood Estates [1958]- Unbroken chain
Building Schemes
Re Dolphin’s Conveyance [1908]- each house can enforce on others
Building Schemes- requirements- case
Elliston v Reacher [1908]; Birdlip v Hunter [2016]
Building Schemes- list the requirements
- Purchasers must deprive title from a common vendor
- plot
- same restrictions for all
4.each purchaser knows that covs. benefit all plots
Building schemes- intention is key!
Baxter v Four Oaks Properties [1970]
Building Scheme- if covenants vary
No BS- Small v Oliver & Saunders [2006]
When could a positive covenant run?- the exception
Halsall v Brizell- if burden of expenditure runs tightly connected with a benefit; maintain driveway- use driveway
R Ives Investment v High [1967]
What are indemnity covenants? clue- positive + case law
original covenantor has to require IC from successor- Thameswood Town v Allotey
Instances when covenants get discharged
- co-ownership between benefiting and burdened land
-application to lands chamber- s.84
-Housing Act 1985 s.610
co-ownership between benefiting and burdened land case
Re Tiltwood, Sussex [1978]- merger
grounds for application to the lands chamber-s.84 LPA
- changes in the character of the property
-no practical benefit
-those entitled to the benefit have agreed to discharge
-will not harm those entitled to the benefit
Alexander Divine case [2020]- relevance
application to discharge of a negative covenant; remedy was damages
Cases when doctrine of benefit and burden was applied- principle from H v B
Davies; Wilkinson; Goodman;- more recent
Halsall, Tito, Ives- early
The case of Rhone- significance in relation to doctrine of B and B
The party must have had the choice of giving up on the benefit- is that practical or mythical?- gray area of law
Discharge of covenants- which section?
s.84 LPA 1925- 4 grounds
‘REASONABLE USER’- S.84, which part? and case law
s.84 (1) (aa)- Stephard v Turner [2006]
