Freehold covenants Flashcards
Can covenants be legal interests?
No
Can covenants pass by common law?
No
Burden of restrictive covenant passes in equity if:
- covenant is restrictive,
- covenant was made to benefit dominant land retained by the covenantee
- covenant touches and concerns the dominant land
- covenant made with intent to burden servient land
- servient land owner has notice of the covenant
3 methods of enforcing a positive covenant against a successor in title:
- create a lease
- use an indemnity covenant
- doctrine of mutual benefit + burden
How the benefit of a covenant can pass in common law:
- by annexation
- by assignment
How benefit of a covenant can pass in equity:
- by express annexation
- by implied annexation
- by statutory annexation (may be excluded by parties)
- by assignment
- building schemes
When does benefit of a covenant pass by express assignment (in common law and equity)?
- express assignment must happen at same time as the transfer of land,
- it must be in writing + signed by original covenantee,
- written notice of the assignment must be given to the person burdened
Remedies for breach of positive covenant
Usually damages- must be sought against original covenantor!
Remedies for breach of restrictive covenant
A discretionary injunction
OR: damages instead, if:
- injury to C’s rights small,
- capable of being estimated in money,
- can be adequately compensated in money, and
- it’d be oppressive to grant injunction
How to modify/discharge RESTRICTIVE covenants
- express release
- common ownership
- applying to Lands Chamber of the Upper Tribunal
- insurance
How must an express release be made?
Via deed
What must the applicant prove to discharge a restrictive covenant by applying to Lands Chamber of the Upper Tribunal?
- covenant is obsolete,
- it impedes the reasonable use of the land (doesn’t grant benefit, or contrary to public interest),
- those entitled to benefit expressly/impliedly agree to discharge, OR
- discharge wouldn’t injure those entitled to benefit
