Freehold Covenants Flashcards
What is a covenant & is it capable of being legal?
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
Who are the covenantor and covenantee?
Covenantor (owner of the servient land) MAKES the promise
Covenantee (owner of the dominant land) RECEIVES BENEFIT of the promise
What is the dominant land & servient land?
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)
Can Amy, successor in title to the covenantee, enforce covenants against Bill, successor in title to the covenantor?
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)
What are the steps for establishing whether the benefit & burden of covenants have passed to successors in title?
- Does the burden pass at equity?
- If so, does the benefit pass at equity?
- Does the burden pass at common law? (Never does, ie. has this been circumvented?)
- Does the benefit pass at common law?
Does the burden of a freehold covenant pass in equity?
Burden passes in equity if the 4 conditions in Tulk v Moxhay are met:
- The covenant must be negative
- 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)
- 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)
- 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
How can you tell if a covenant is negative?
It can be satisfied by doing nothing
What are the 4 conditions in Tulk v Moxhay that must be satisfied for the burden of a freehold covenant to pass at equity?
- The covenant is negative (ie. can be satisfied by doing nothing)
- 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
- Original parties intended the burden should pass
- Expressly, by wording (‘land known as The Manor’)
- or implied by statute (s.79 LPA)
- 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
How can the successor in title to the covenantor have notice?
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
(If the burden of a freehold covenant passes at equity) Does the benefit of a freehold covenant pass in equity?
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
What is the difference between annexation & assignment & building schemes?
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
What is s78 LPA 1925 and can it be excluded?
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
What are the requirements in Renals v Cowlishaw for annexation?
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
What are the requirements in Renals v Cowlishaw for assignment?
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
What are the requirements in Renals v Cowlishaw for building schemes?
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
