Freehold Covenants Flashcards
What are covenants?
Promises that are made about the use, maintanence and enjoyment of the land - these are written down on the deed.
You can have a positive covenant = the promise to do something.
You can have a negative covenant = the promise NOT to do something. Restrictive covenants
Covenants to do with land are valid - no personal silly ones.
The person who must obide and (in the eyes of the law, offers the covenant) is called the…
Covenantor.
The person who enjoys the benefit of the covenant is called the covenantee
If there is a covenant between 2 lands, which is the dominant land?
The land that enjoys the benefit of a covenant.
If there is a covenant between 2 lands, which is the servient land?
The land that carries the burden of fulfilling a covenant.
How to enforce a covenant between the original landowners who made the covenant?
Using contract law.
Negative covenants - how are the burdens passed and the benefits?
Burden = Equity rules.
Benefit = Common law or equity, so can rely on deed
How are the benefits and burdens of positive covenants passed?
Burden = DOES NOT PASS AND SO INDEMNITY AGREEMENT NEEDED.
Benefit = Equity or common law, so can rely on deed and then sue the covenator for damages etc.
When will a covenant not pass at common law?
When it intentionally has not been annexed to the land or when the covenant has nothing to do with the land or when the covenant was made with no actual legal estate in land by one of the parties.
Whar rules do we follow for both positive and negative covenants?
Equity rules.
Does the burden of a positive covenant pass naturally and automatically when a new successor/ purchaser of the land comes into the picture, replacing the covenantor?
NO. The original covenator remains on the hook.
IT IS IMPORTANT TO HAVE an indemnity agreement between the original owner and the successer-in-title needs to be made to make the new owner liable.
This creates a chain of indemnity.
Why is common law limited when it comes to covenants?
Because it doesnt allow for positive covenants (the only one the common law enforces) to pass automatically to the new owner or successor-in-title, but rather still binds the original covenantor.
This is why indemnity agreement is needed between the original covenantor and the new covenantor. Otherwise the original covenantor is held liable when they have left and have nothing to do with the land.
If an indemnity agreement is not made for the observance of a positive covenant when the covenantor servient land (successor-in-title) is sold, what happens to the original covenantor?
The covenatee can claim damages from the original covenantor (as they no longer own the property and cannot do specific performance). This is bad for the original covenantor as clearly, they are still on the hook.
Modern developments is an exception as it allows positive burdens to pass automatically?
Yes. The covenantor or their future successors are allowed to not carry out the positive covenants of maintaining the modern developments - if they wish not to use the modern development (like pipeworks that run through the covantees land). And so will not be liable to being sued. They are not forced to continue the burden.
The burden of a restrictive/ negative covenant is assumed to run with the land (aka to pass automatically), unless…
expressed otherwise in the deed.
Does a restrictive/ negative covenant need to be registered for it to bind a 3rd party?
Yes. Must be registered at the Land Charges Register (for unregistered land) as a D(ii) land charge. Must be registered at the Land Registry (Charges register) for registered land.
Does a positive covenant need to be registered to bind? How do you bind a 3rd party?
No. Will stay binding the original covenantor. Indemnity agreement needed between original covenantor and the successor-in-title covenantor (new purchaser) to free the original covenantor from the burden. Notice this indemnity in the Proprietorship Register.
Negative/ restrictive covenant that has been written into the deed. When 3rd party buys land, are they bound by this covenant?
Yes - as the burden of covenant passes in common law
When does a benefit not pass at common law?
When the:
1. Successive-in-title (the new covenantee for example) does not hold the legal estate.
2. The covenant does not touch or concern the land
3. When the covenant has intentionally not been annexed into the land - aka not registered.
When can a positive covenant pass as a burden to the new owner?
The covenant is a positive covenant and the burden of this does not pass at common law (Austerberry v Corporation of London) nor in equity (Tulk v Moxhay), however the doctrine of mutual benefit and burden under Halsall v Brizell applies. There is an alternative way of enforcing the burden of the positive covenant. The right to use the drains benefits the company’s land and the use of this is conditional on it contributing towards the cost of its maintenance. It enables the owner with the benefit of the covenant to prevent the exercise of the right if the costs of maintenance have not been paid.
Modern developments.
What is the Halsall v Brizzell doctrine (involved in passing positive covenant burdens to new owners)…
Even though a positive covenant’s burden will not pass automatically, when the positive covenant bestows a mutual benefit to the covenantor land and the covenantee’s land, the positive burden will pass to the new purchaser .. freakishly. This is the Brizzell doctrine.
Are covenants legal or equitable interests?
EQUITABLE
A covenant is not capable of being legal (s 1(3) LPA 1925). Creation by deed does not alter this.
If there is a restrictive covenant and the new purchaser of the covenator land had no idea about the restricive covenant… what can be done?
Nothing if the covenant has been registered on the register of title of the farmhouse.
What is the principle remedy to a breach of restrictive/ negative covenant?
Injunction - ask the courts for one.
Could also ask for damages.
What is the principle remedy to a breach of a positive covenant?
Specific performance.
Otherwise, if the property has changed hands to a new owner - it will be damages the covenantee is seeking
When an indemnity agreement has been made for a positive covenant burden to pass onto the new owner… who is sued when this covenant is not observed? The new or the old owner
The old owner. And then the new owner indemnifies them
Positive covenants, to enforce them - the covenantee must show what?
That the benefit did pass to them at common alw
Do covenants have to be registered in order for it to bind?
Yes. Buying without notice of it will still bind you if it has been registered.
