Freehold Covenants Flashcards
What is a freehold covenant?
A promise to do something. Usually involves expenditure of money - hand in pocket test.
What is a negative/restrictive covenant?
A promise not to do something. Restricts the use of land, can be complied with by inaction.
Passing the benefit/burden of covenants - what are the relevant sets of rules?
The rules used to pass the burden determine the rules used to pass the benefit.
Restrictive covenants - equitable rules (a restrictive covenant is capable of being an equitable interest);
Positive covenants - common law rules.
What are the conditions that must be satisfied for the burden of restrictive covenants to pass under the equitable rules?
The covenant must be restrictive.
The covenant must accommodate the dominant tenement. Dominant land which is benefitted.
There must be intention for the burden of the covenant to run.
There must be notice of the covenant.
How do you protect a covenant in registered/unregistered land?
Registered land - the covenant must be protected by entry of a notice in the charges register of the servient title.
Unregistered land - covenant must be protected by a class D (II) land charge.
What remedies are available on breach of a restrictive covenant?
As a restrictive covenant is an equitable interest in land, equitable remedies are available to enforce the breach against the current owner.
Equitable remedies = discretionary.
Prohibitory injunction - if breach is threatened/ongoing.
Mandatory injunction - breach has already occurred.
Equitable damages not as of right but may be awarded in lieu of an injunction.
Can the burden of a positive covenant pass directly to a successor?
The burden of a positive covenant cannot pass directly to a successor but the original covenant or will remain liable.
Indemnity covenants.
What is the rule in Halsall v Brizell?
The burden of the covenant can pass to a successor covenantor at common law where the covenantee grants to the covenantor a benefit in the nature of an easement and imposes a connected burden.
Think connected benefit and burden.
e.g. a covenant to contribute towards the costs of the maintenance of a tennis court, which the serving landowner has a right to use.
