Freehold Covenants

Question 1

Definition of freehold covenants

Answer 1

• a contractual promise made in relation to the freehold land
• burden = attaches to the servient land
• benefit = attaches to the dominant land
• they can be positive [do something] and negative [don’t do something]

Question 2

The different methods for transmission

Answer 2

Assignment
Annexation
Building Scheme

Question 3

Assignment

Answer 3

Expressly assign
- must touch and concern [benefit] the dominant land = Smith & Snipes v Douglas Catchment Board
- the dominant land must be certain or ascertainable
- the assignment must be signed in writing, per s.53 (1)(a) LPA 1925 or in a deed

Question 4

Annexation

Answer 4

• it runs with the land, so there is no need to renew it after every tranfer of the land, unlike assignment
• the covenant must touch and concern the dominant land = Smith & Snipes v Douglas Catchment Board
• can be positive or negative, but the burden of posiitve covenants will not pass
• the dominant land must be ascertainable or certain = the courts are hesitant to sever the covenant by saying that it only applies to the certain parts of the land, if it has been divided = Crest Nicholson Residential v McAllister
• there must be evidence of an intention to benefit B’s land

Question 5

Intention to benefit B’s land under annexation

Answer 5

If the intention to benefit B’s land cannot be found, then it can be presumed by s.78 LPA 1925
– no deed required, an intention is presumed, the statute removes the need for an express intention
– Federation Homes v Mill Lodge Properties
- B purchased a part of A’s land
- B promises not to build more than 300 houses
- C acquires A’s land and learns that they want to build more
- the benefit of the covenant passes due to s.78
- disadvantage = A subdivided the land so B’s duty was to many successors in title vs. duty unchanged, just to more people
+Roake v Chadka = the parties can expressly contract out of s.78 if they do not want it to apply

Question 6

The transmission of the burden of restrictive/negative covenants

Answer 6

• at law it is not possible for the burden to pass = Austerberry v Corporation of Oldham
• in equity, the burden of the retsrictive covenats can pass if requirements are met …
  [restated in Rhone v Stephens]
  1. the covenant must relate to the land
  2. the burden must intend to run with the land = so evidence of intention is needed
  = the presumption that it will run with the land is s.79, but the parties can contract out of it [s.79(1)]
  3. dominant land must be capable of benefitting fromt the covenant
  4. the covenant must be restrictive in nature - negative in form or substance = Jaggard v Sawyer
  5. compliance with formalities/registration

Question 7

3. dominant land must be capable of benefitting fromt the covenant

Answer 7

London County Council v Allen
- the covantee must be the owner at the time of the grant
Newton Abbott v Williamson & Treadgold
- the dominant land should be identifiable in the covenant
- this case allowed for the covenant to benefit the business owner and not the land [vs. Hill v Tupper]

Question 8

Transmission of the Restrictive Covenants

Answer 8

It is possible for the positive burdens to run

Question 9

Creation and protection of restrictive covenants

Answer 9

• signed in writing at least = s.53 (1)(a) + s.2(1) LPMPA
• no registration required = s.27 LRA
• should try and protect it though as you can register a freehold covenant through a notice per s.32 + s.33 LRA 2002

Question 10

Remedies for Breach of negative covenants

Answer 10

• injunctions were the default remedy - Jaggard v Sawyer
• Coventry t/a RDC Promotions v Lawrence held that damages should be the default remedy
• damages will be awarded instead of an injunction where …
  1. th einjury to the claimant is small
  2. the claimant’s injury is capable of bieng estimated in money
  3. monetary compensation is an adequate remedy
  4. it would be oppressive to grnat an injunction
  5. the role of public interest
• issues with awarding damages = a light sanction to unlawful action, undermines the security of property rights, forced sale of a covenant
• negotiating damages = Morris-Garner v One Step Support - for when it is difficult to quanity, then ask, what would the parties have agreed on in negotiations to breach the covenant