Freehold Covenants

Question 1

The original convenantor is always liable for breaches of their freehold covenants, unless a contrary intention has been expressed on creation. Which section of which Act?

Answer 1

Section 79 Law of Property Act 1925

Question 2

What are the ways that the benefit of restrictive covenants may pass at common law?

Answer 2

1. Express assignment

2. Automatic assignment

Question 3

What are the formalities for express assignment?

Answer 3

Included in the deed on conveyance of the property s136 LPA 1925

Question 4

What is required for automatic assignment?

Answer 4

1. Covenant touches and concerns the land (Smith and Snipes Hall)
2. Original covenantee and claimant have legal estate
3. Parties intended the benefit to run either by express annexation or automatic annexation (s78 LPA 1925)

Question 5

When will automatic annexation take place?

Answer 5

As long as there are no contrary intentions recorded on the transfer document s78 LPA 1925

Question 6

Will the burden of covenants pass at common law?

Answer 6

No (Austerberry v Oldham)

Question 7

What is the exception to Austerberry v Oldham?

Answer 7

Halsall v Brizell- if the covenant is related to a a benefit conferred it can run at common law

Question 8

Will the benefit of a covenant pass at equity?

Answer 8

Yes if express assignment or:

1. Covenant touches and concerns the land (Smith and Snipes Hall)
2. Parties intended the benefit to run either by express annexation or automatic annexation (s78 LPA 1925).

Question 9

When will the burden of a positive covenant pass at equity?

Answer 9

It will not. In Rhone v Stephens;
Lord Templeman said that equity could not override the fundamental principle of English law relating to privity of contracts.

Question 10

When will the burden of a restrictive covenant pass at equity?

Answer 10

1. Covenant touches and concerns the land (Swift Investments)
2. Original parties intended covenant to run
3. The purchaser had notice (either as an IARE in registered land or a Class D(ii) land charge in the unregistered system)

Question 11

What are the remedies for breach of covenant at common law?

Answer 11

Damages only against an original covenantor

Question 12

What are the remedies at equity?

Answer 12

Specific performance or damages in lieu of specific performance

Question 13

How may a successor in title to a covenantor find themselves liable even if Halsall v Brizell doesn’t apply?

Answer 13

Through an indemnity chain

Question 14

How can a covenantor free themselves from a covenant?

Answer 14

Either through

1. Agreement with the covenantee
   or
2. A s84 LPA application to the Lands Tribunal