Freehold Covenants Flashcards
Is the original person giving a covenant mind by privity of contract in the context of freehold covenants?
Yes - this means that the liability of the original person giving the covenant has the potential to last forever, even after the land has been sold - the person giving the confident may have covenanted on behalf of themselves and their successors in title either expressly within the relevant documents such as a deed or have not made expressly. It can be implied by the land and property act 1925 provided that the covenant relates to land.
The obligation of the original person giving the covenant relates to both positive and restrictive covenants
Can the burden of either a positive or restrictive covenant pass at common-law
No - only the benefit of a contract can be assigned, but the burden can never be assigned - enforcing, a covenant against a successor in title would be chicken force a personal obligation against a person who has not covenanted
If someone agrees a freehold covenant to paint their property, when does this application extinguish?
Move, the Person will always be bound by this covenant due to privity of contract, and that means that she is bound by her promise forever, but the successor in title is not bound by the covenant, is the burden of the covenant cannot pass in common law
Can the burden of a restrictive covenant pass in equity?
Yes, if the requirements in Tulk are met
What are the Tulk requirements for the burden of a restrictive covenant to pass in equity?
A) the covenant must be negative (restrictive) in substance
B) the covenant must at the time of creation of the covenant have been to benefit the dominant Lange retained by the Covenantee
C) the covenant must touch and concern the dominant land
D) the covenant must be made with the intent to burden the servient land
E) the owner of the server and land must have notice of the covenant for it to bind them
What does the Tulk requirements of the covenant must at the time of the creation of the covenant have been made to benefit dominant land retained by the covenantee mean?
There must be identifiable dominant land at the time the covenant is created - as most covenants are created when a part of land is sold. This means that the seller must retain some land.
In a case, the county council sold land, subject to a covenant not to build on it a successor to the original covenant started to build on her land, and the county council could not prevent her from building as it feel to retain any dominant land
Why is it sometimes better for the Person to him? The covenant is made to pursue the benefit and burden in equity rather than common-law
Because the common law can only provide damages -so if you want to stop someone from doing something or ensure that someone does something it may be better to look at equity as equity engages with equitable remedies that may be more suited to someone who wants to maintain some level of control over the behaviour of what happens on the land
What is the one exception to the rule that the burden of a covenant cannot pass under the common law?
If the dominant land owner grants the owner of the servient land, a right or benefit over the dominant land, such as a right of way, or a right of drainage
And the right comes with an associated costs such as Maintenance
And the owner of the servient land can choose whether or not to use the benefit and therefore pay the burden
It’s all three of these conditions are met then the successor of the owner of the survey and land is bound by the upkeep, if they choose to maintain the benefit
Note so that the successor must have the choice to accept the benefit and burden - if they do not have the choice, because for example, they need the drainage for the use of the property, then they cannot be bound by the upkeep obligation
What is the only way the burden of a positive covenant can pass to in successor in title
Via a chain of indemnities - equity and common-law will not work
What are the four requirements for the running of the benefit, a common law of the freehold covenant by the process of annexation
The covenant must touch and concern the land it must’ve been an intention of the benefit should run with the estate owned by the person who had the first covenant given to them, that Person must have a legal estate in the benefit of land, not just an equitable one, and the buyer of the benefit of lamb must also take a legal action in the benefit of land. Sorry illegal title in the benefit of land.
What are the three ways of the running of the benefit in equity of a freehold covenant?
Annexation, assignment and building schemes
What are the requirements for express annexation for the running of the benefit of equity?
It must use clear words to describe the land that will benefit from the annexation, such as saying in every and each part to ensure that the covenant is our next to each part of the dominant land. If in the future, it is divided into smaller parts.
What are the requirements for statutory annexation for the purposes of passing the benefit of a freehold covenant to successes in title
The covenant must’ve been created after the implementation of the LPA supposed 1925, and the covenant must touch and concern the land
Can an original Coventee claim damages once they’ve sold their property
No - they no longer have any interest
