Freehold Covenants

Question 1

What are covenants in land law?

Answer 1

Covenants are promises made by deed between freeholders to do something (positive covenants) or refrain from doing something (negative covenants) concerning their own or adjoining land.

They are considered incorporeal hereditaments, meaning intangible rights attached to land

Question 2

What is the difference between positive and negative covenants?

Answer 2

• Positive covenants require action, such as maintaining a shared drain
• Negative covenants (or restrictive covenants) prohibit certain actions, such as not building beyond a certain height

Question 3

What does it mean for covenants to “run with the land”?

Answer 3

Covenants can transform from contractual rights to proprietary rights, allowing them to bind successors and “run with the land” under specific conditions

Question 4

Who are the covenantor and covenantee in a covenant?

Answer 4

• Covenantor is the party who makes the promise and bears the burden
• Covenantee is the party who enjoys the benefit of the covenant

Question 5

What is the difference between positive and negative covenants in terms of burden passing?

Answer 5

• Positive covenants: The burden does not pass at common law unless specific mechanisms like indemnity chains exist (e.g., Halsall v Brizell)
• Negative covenants: The burden may pass in equity (e.g., Tulk v Moxhay)

Question 6

What is the test for passing the benefit of a covenant at common law?

Answer 6

The benefit can pass if it:

1. Touches and concerns the land (enhances the dominant tenement’s value)
2. Was intended to run with the land
3. The original covenantee had a legal estate

Question 7

How does equity handle the passing of the benefit of covenants?

Answer 7

Equity also allows the benefit to pass, often relying on annexation, assignment, or schemes of development, similar to the common law requirement

Question 8

What are the conditions for passing the burden of a covenant in equity?

Answer 8

The burden may pass if:

1. The covenant is negative in nature
2. It touches and concerns the land
3. It was intended to run with the land
4. The successor has notice of the covenant (actual, constructive, or imputed)

Question 9

What are the remedies for enforcing covenants?

Answer 9

Remedies include:

• Damages (at common law)
• Injunctions (in equity) to prevent a breach of the covenant

Question 10

What is the significance of s84 LPA in relation to covenants?

Answer 10

Under s84 LPA, landowners can apply to the Land Tribunal for discharge or modification of a covenant if:

1. The covenant has become obsolete due to changes in the neighbourhood
2. It hinders reasonable use of the land
3. The beneficiary agrees to the modification
4. Discharging the covenant causes no loss to the beneficiary