Freehold covenants Flashcards
Which types of covenants are recognised as proprietary rights?
Restrictive covenants
What are the two rules on passing the burden and benefit of covenants?
- equitable rules
- common law rules
Will positive covenants be enforced against a successor covenantor in equity?
No
How are positive covenants determined?
involves expenditure of time, effort or money
How are mixed negative/positive covenants interpreted?
- two separate covenants or
- one obligation with a condition attached
What is the general rule at common law regarding the burden of a covenant?
Does not pass to a successor
What is the equity rule that allows a burden of a covenant to pass to a successor?
The rule in Tulk v Moxhay
What are the elements of the rule in Tulk v Moxhay?
- Restrictive
- Accommodate dominant land
- Intention for burden to run
- Notice
What does ‘accommodate the dominant land’ mean in the rule in Tulk v Moxhay?
- covenantee and successor must hold interest in land at time of creation and enforcement
- must touch and concern dominant land
- must be in proximity
What does ‘touch and concern’ mean in the rule in Tulk v Moxhay?
- only benefits dominant owner whilst they own dominant land
- affect nature, quality, use, value
- not be expressly personal
How can intention for the burden of a covenant to run be shown under the rule in Tulk v Moxhay?
Expressly or
Impliedly (deemed on behalf of successors unless contrary intention shown)
How does notice work in the rule in Tulk v Moxhay?
- Registered land: notice on charges register of S land
- Unregistered land: D(II) Land Charge
- If not, will not bind purchaser for value but will bind volunteer/done
If a successor covenantee wishes to enforce a breach of covenant against a successor covenantor, what two things must they show?
- burden passed in equity
- benefit passed in equity
What elements must be fulfilled for the benefit of a covenant to pass in equity?
- Must touch and concern dominant land
- Must pass by-
a. Annexation
b. Assignment or
c. Building scheme
What is annexation?
Covenant made in a way that benefit becomes permanent part of dominant land
What are the ways in which annexation can occur?
- express
- statutory (autmoatic unless excluded)
What must happen for assignment of the benefit of a covenant?
- transferred each time land transferred
- in writing
- signed by transferor
What is the requirement for a building scheme?
Parties intended to create a scheme of mutually enforceable obligations
Are remedies for breach of a restrictive covenant in equity automatic?
No discretionary
What are the remedies for breach of restrictive covenant in equity?
- prohibitory injunction
- mandatory injunction
- damages
What may cause an issue when trying to obtain a remedy for breach of a restrictive covenant at equity?
Delay defeats equity
What are the common law rules for the burden of covenants generally used for?
Positive covenants
What is the effect of the general rule at common law for the burden of covenants?
Original covenantor still has burden and can be sued for all breaches
What is the remedy available for breach of a covenant at common law?
Damages only
How may an original covenantor be able to protect themselves if they are sued for damages for breach of a covenant at common law?
Indemnity covenant
What is required for there to be indirect enforcement of the burden of a covenant at common law?
complete chain of indemnity
How may the burden of a covenant pass at common law (and thus provide an exception to the general rule?
Doctrine of mutual benefit and burden
What is the doctrine of mutual benefit and burden?
covenantee grants to covenantor a benefit in the nature of an easement and imposes a connected burden
What are the requirements for the doctrine of mutual benefit and burden?
- clear link
- genuine choice
- conferred in same transaction
What is another way that a burden of a covenant could bind a successor in title other than the doctrine of mutual benefit and burden?
Grant of a long lease
What are the ways that the benefit of a covenant can pass to a successor at common law?
- express assignment
- implied assignment
What are the requirements for express assignment of the benefit of a covenant at common law?
in writing
notice to covenantor
What are the requirements for implied assignment of the benefit of a covenant at common law?
- touch and concern
- intention that benefit should run with land
- original covenantee had legal estate
- successor covenantee has legal estate
When will a covenant be automatically discharged?
When same person owns dominant and servient land
How may a covenant be expressly discharged by a dominant owner?
Formal release of covenant by deed
How may a covenant be impliedly discharged by a dominant owner?
doing nothing when covenant is breached openly
Which types of covenants can be modified or discharged by the Upper Tribunal (Lands Chamber)?
Restrictive covenants
What are the grounds on which the Upper Tribunal (Lands Chamber) may discharge or modify a covenant?
- obsolete due to change in character
- continued existence impedes reasonable use
- expressly/impliedly agreed
- no injury
