Freehold covenants

Question 1

Which types of covenants are recognised as proprietary rights?

Answer 1

Restrictive covenants

Question 2

What are the two rules on passing the burden and benefit of covenants?

Answer 2

• equitable rules
• common law rules

Question 3

Will positive covenants be enforced against a successor covenantor in equity?

Answer 3

No

Question 4

How are positive covenants determined?

Answer 4

involves expenditure of time, effort or money

Question 5

How are mixed negative/positive covenants interpreted?

Answer 5

• two separate covenants or
• one obligation with a condition attached

Question 6

What is the general rule at common law regarding the burden of a covenant?

Answer 6

Does not pass to a successor

Question 7

What is the equity rule that allows a burden of a covenant to pass to a successor?

Answer 7

The rule in Tulk v Moxhay

Question 8

What are the elements of the rule in Tulk v Moxhay?

Answer 8

1. Restrictive
2. Accommodate dominant land
3. Intention for burden to run
4. Notice

Question 9

What does ‘accommodate the dominant land’ mean in the rule in Tulk v Moxhay?

Answer 9

• covenantee and successor must hold interest in land at time of creation and enforcement
• must touch and concern dominant land
• must be in proximity

Question 10

What does ‘touch and concern’ mean in the rule in Tulk v Moxhay?

Answer 10

• only benefits dominant owner whilst they own dominant land
• affect nature, quality, use, value
• not be expressly personal

Question 11

How can intention for the burden of a covenant to run be shown under the rule in Tulk v Moxhay?

Answer 11

Expressly or
Impliedly (deemed on behalf of successors unless contrary intention shown)

Question 12

How does notice work in the rule in Tulk v Moxhay?

Answer 12

• 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

Question 13

If a successor covenantee wishes to enforce a breach of covenant against a successor covenantor, what two things must they show?

Answer 13

• burden passed in equity
• benefit passed in equity

Question 14

What elements must be fulfilled for the benefit of a covenant to pass in equity?

Answer 14

1. Must touch and concern dominant land
2. Must pass by-
   a. Annexation
   b. Assignment or
   c. Building scheme

Question 15

What is annexation?

Answer 15

Covenant made in a way that benefit becomes permanent part of dominant land

Question 16

What are the ways in which annexation can occur?

Answer 16

• express
• statutory (autmoatic unless excluded)

Question 17

What must happen for assignment of the benefit of a covenant?

Answer 17

• transferred each time land transferred
• in writing
• signed by transferor

Question 18

What is the requirement for a building scheme?

Answer 18

Parties intended to create a scheme of mutually enforceable obligations

Question 19

Are remedies for breach of a restrictive covenant in equity automatic?

Answer 19

No discretionary

Question 20

What are the remedies for breach of restrictive covenant in equity?

Answer 20

• prohibitory injunction
• mandatory injunction
• damages

Question 21

What may cause an issue when trying to obtain a remedy for breach of a restrictive covenant at equity?

Answer 21

Delay defeats equity

Question 22

What are the common law rules for the burden of covenants generally used for?

Answer 22

Positive covenants

Question 23

What is the effect of the general rule at common law for the burden of covenants?

Answer 23

Original covenantor still has burden and can be sued for all breaches

Question 24

What is the remedy available for breach of a covenant at common law?

Answer 24

Damages only

Question 25

How may an original covenantor be able to protect themselves if they are sued for damages for breach of a covenant at common law?

Answer 25

Indemnity covenant

Question 26

What is required for there to be indirect enforcement of the burden of a covenant at common law?

Answer 26

complete chain of indemnity

Question 27

How may the burden of a covenant pass at common law (and thus provide an exception to the general rule?

Answer 27

Doctrine of mutual benefit and burden

Question 28

What is the doctrine of mutual benefit and burden?

Answer 28

covenantee grants to covenantor a benefit in the nature of an easement and imposes a connected burden

Question 29

What are the requirements for the doctrine of mutual benefit and burden?

Answer 29

• clear link
• genuine choice
• conferred in same transaction

Question 30

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?

Answer 30

Grant of a long lease

Question 31

What are the ways that the benefit of a covenant can pass to a successor at common law?

Answer 31

• express assignment
• implied assignment

Question 32

What are the requirements for express assignment of the benefit of a covenant at common law?

Answer 32

in writing
notice to covenantor

Question 33

What are the requirements for implied assignment of the benefit of a covenant at common law?

Answer 33

1. touch and concern
2. intention that benefit should run with land
3. original covenantee had legal estate
4. successor covenantee has legal estate

Question 34

When will a covenant be automatically discharged?

Answer 34

When same person owns dominant and servient land

Question 35

How may a covenant be expressly discharged by a dominant owner?

Answer 35

Formal release of covenant by deed

Question 36

How may a covenant be impliedly discharged by a dominant owner?

Answer 36

doing nothing when covenant is breached openly

Question 37

Which types of covenants can be modified or discharged by the Upper Tribunal (Lands Chamber)?

Answer 37

Restrictive covenants

Question 38

What are the grounds on which the Upper Tribunal (Lands Chamber) may discharge or modify a covenant?

Answer 38

• obsolete due to change in character
• continued existence impedes reasonable use
• expressly/impliedly agreed
• no injury