Freehold covenants

Question 1

How does the benefit of a positive covenant pass to a new owner?

Answer 1

Common Law:
The covenant touches and concerns the land,
Express or implied intention that the benefit should run,
covenantee & buyer have a legal interest

Equity:
Annexation or assignment

Question 2

How does the burden of a positive covenant pass to a new owner?

Answer 2

Generally does not under the common law or equity.
(can never pass under common law)

Doctrine of mutual benefit will allow it to pass - equity

Question 3

When can the burden of a restrictive covenant pass?

Answer 3

Equity - Tulk v Moxhay, when the restrictive covenant is:

• Is negative (or restrictive) in substance;
• Was made to benefit the dominant land;
• Touched and concerned the dominant land;
• Was made with the intent of burdening the servient land

-The buyer had notice of the covenant. (registered)

Question 4

How to is notice of a restrictive covenant given in an unregistered property?

Answer 4

Registration of a Class D(ii) Land Charge at the Land Charges Department against the owner of the Property at the date of the Deed.

Question 5

How is the benefit of a covenant annexed at common law?

Answer 5

1. The covenant touch and concerns the land
2. intention that the benefit would run with the estate
3. the covenantee must have a legal estate in the benefited land
4. the buyer of the benefitted land must also take a legal title

Question 6

How is the benefit of a covenant annexed in equity?

Answer 6

Express annexation -
The covenant expresses an intention to benefit a defined piece of land (must identify the whole land, not just successors)

Implied annexation -
The courts may imply if it was obviously intended and would be unjust to ignore (must be manifested in the transfer)

Statutory annexation -
- automatically annexes provided:
- the covenant was created after LPA 1925
- the covenant touches and concerns the land

Question 7

What is the remedies for breach of a positive covenant?

Answer 7

Damages - only need to prove that the claimant has the benefit of the positive covenant in common law (burden not needed)

Specific performance - may be available for the breach of a positive covenant by the original
covenantor (but not a successor in title to the original covenantor).