Freehold Covenants Flashcards
How to determine between a positive and a restrictive covenant?
if covenantors have to put their hands in their pockets to find money to spend to perform the covenant, it is positive.
Money, effort or time= positive.
can covenants be mixed?
yes, but are then separated to create into two standalone covenants.
If it cannot be separated, the covenant is interpreted as being overall positive or restrictive depending on whether it obliges the covenantor to do or not do something.
what is the general rule of whether a covenant can pass to a successor at common law?
At common law, burden DOES NOT PASS.
This mainly means positive covenants, as restrictive covenants pass in equity.
what are the 4 requirements for a burden of a covenant to be passed on to the next successor?
- covenant must be restrictive.
- must accommodate the dominant tenement.
- there must be intention for the burden of the covenant to run.
- must be notice of the covenant.
what are the three aspects to the second rule that the covenant must accommodate the dominant tenement?
- covenantee and successor covenantee must hold an interest in land at the time of creation and enforcement.
- covenant must touch and concern (benefit) the land.
- dominant land and the servient land must be in proximity.
how can there be intention for the burden of the covenant to run?
expressly.
impliedly- LPA 1925, s79
if no intention, purchaser for value will not be bound but a donee will.
How can a covenantee enforce a breach against a successor covenantor?
- burden of the covenant has passed to the successor covenantor in equity.
- benefit has passed to the successor covenantee in equity.
example… A promises to B not to build on A’s land then B is the person who benefits from this promise. A has the burden not to build= covenantor.
B= covenantee has benefit.
how to pass the benefit of a covenant in equity? ONLY RESTRICTIVE!
- covenant must touch and concern the dominant land.
- benefit must pass through annexation or assignment.
- annexation- becomes a permanent part of the dominant land e.g through need, MUST RELATE TO PASSING ON THE BENEFIT NOT BURDEN.
- assignment- in writing and signed by the person transferring the benefit.
how to pass the benefit of a covenant under a building scheme?
benefit of a restrictive covenant will pass if the parties intended to create a scheme of mutually enforceable obligations.
can the original covenantor be sued for its own breaches and the breaches of its successors?
yes as they still have the burden of the covenant.
however, the original covenantor should require its successor to enter an indemnity covenant promising to comply with the covenant and to indemnify it for any loss as a result of the breach.
Can sue their direct successor.
What is the rule in Halsall and Brizell? common law
enables the burden of a covenant to 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.
e.g benefit- right to park
burden- contribute towards maintenance.
how does the benefit pass in the common law for the successor in title covenantee to be able to enforce it?
express assignment- in writing with notice to the convenantor.
implied assignment
1. covenant must touch and concern the land (benefit it)
2. intention for the benefit to run with the dominant land (expressly said)
3. original covenantee must have a legal estate in the dominant land.
4. successor must hold a legal estate in the dominant land.
how to discharge a covenant?
- a covenant will automatically be discharged if the same person becomes the owner of both the dominant and servient land.
- dominant owner may expressly agree to discharge the covenant and will enter into a formal release of the covenant, usually in return for payment. MUST BE DONE BY DEED.
- dominant owner can impliedly agree to discharge the covenant by doing nothing when the covenant is being breached openly.
what does Section 78(1) Law of Property Act 1925 state?
A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them, and shall have effect as if such successors and other persons were expressed.
- annexes the benefit of the covenant.
- works as long as the parties have not excluded s78.
