freehold covenants Flashcards
what are freehold covenants
whereby one freehold owner makes a promise to another freehold owner to do or not do something
- burden is on servient tenement and the promise is for the dominant tenement
- positive or negative covenants
- covenants are made in deed (means they are in the contract)
will pass in equity when…
- the covenant is negative
Haywood v Brunswick Building Society 1881 - the covenant accommodates the dominant land
- covenant should not touch and concern the dominant land; Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board 1949 - original parties must have wanted to bind it to run with the land
- there courts will assume the original parties did want it to run with the land (unless stated otherwise) - Tulk v Moxhay 1848: registration
what is the test for positive covenant
hands in pocket test- if you spend money then it is a positive
Haywood v Brunswick Building Society 1881
in equity for benefit to pass {who can sue}
- covenant touches and concerns the land of original covenant
Wrotham Park Estate Co v Parkside Homes Ltd 1974
-covenant passed by ANNEXATION, EXPRESS ASSIGNMENT or SCHEME OF DEVELOPMENT -[land passed by building scheme]
in equity for burden to pass
- has to be negative.
at the date of the covenant the covenanter owned the land - the covenant was one that touched and corner the land
- the people who made the coventry retained land to bind its successors
- original parties intent the burden to run with the and (this is assumed)
scheme of development
building schemes
- have to have got your title from a common vendor [perosn who sells it all]
- must have laid out the lands in plots
- on sale, same restrictions have to apply to all of them
- must have acquired the plot knowing that they were going to have the benefit
- Backster v Four Oaks Property 1964
- Dolphins convayenses
case for annexation
Federated Homes Ltd v Mill Lodge Properties Ltd 1980- provided the conditions under s78 LPA 1925 are satisfied, annexation of the benefit of a covenant to the dominant land is automatic
what is scheme for development
building scheme-buying a piece of land and constructing a load of houses
remedies
injunctions
damages
what is express assignment
expressly transfer the covenant to another person
- the land must be capable of benefiting from the covenant
if equity doesn’t work then apply common law
- burden will never pass to a successor of servient land
Austerberry v Corporation of Oldham 1885 - benefit will pass if covenant touches/concerns land of covenantee, intended that the benefit should run with the land to the covenants successors in title, covenantee held a legal estate in the land to be benefited
Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board 1949
Rule in Halsall v Brizell 1957
the person who wishes to claim the benefit of a deed must also submit to any corresponding burden which is imposed by that deed
- benefit and burden must be by same transaction
Davis v Jones 2009
-correlations between burden and benefit
Rhone v Stephens 1994
- must have opportunity to elect to take benefit/ renounce it
Thamesmead Town Ltd Allotey 1998
How can a covenant be removed
- written in deed
- expressed release on modification
- go to the land tribunal [say the covenant is unfair/restrictive]
- obsolete [obstructs the enjoyment of the land]
how can a developer get around a restrictive covenant
s.84 LPA 1925
- they can go to the high court and say that it is not enforceable
- you can accept the covenant is valid and get the upper tribunals to modify it
what do you have to do if you want to modify a covenant
if you want to modify or change a covenant you have to be precise in what you want otherwise the high court will decline it
