Freehold Covenants

Question 0

Positive covenant - running of the burden

Answer 0

General rule - doesn’t run, Rhone v Stepens

Exception - mutual benefit and burden, Halzall v Brizell

(1) an intrinsic link between the right and the burden
(2) whether the person has a choice in exercising that right - if they don’t have a choice, then they shouldn’t be burdened to use it

Question 1

Positive covenant - running of the benefit

Answer 1

Doesn’t run

Question 2

Restrictive covenant - running of the burden

Answer 2

Common law - never runs

Equity - rule in Tulk v Moxhay

(1) covenant must be restrictive in nature
- Haywood v Brunswick Permanent BS : if expenditure is required, then it is not restrictive

(2) Covenantee must own land capable of benefitting from the covenant at the time it was granted
- Formby v Baker : if this is not the case, the agreement is merely personal in nature

(3) parties to the covenant must have intended that the burden should run with the land
- s.79 LPA covenants created nowadays have the assumption that they are intended to run

(4) general equitable rules
- including that the successors in title to the covenantor have notice of the covenant

Question 3

Restrictive covenant - running of the benefit (overview)

Answer 3

Common law

(1) covenant must not be personal in nature
(2) covenant must “touch and concern the land”, Smith and Snipes Hall Farm
(3) the DT must be identifiable

Equity

• Annexation
• Assignment
• Schemes if development

Question 4

Assignment

Answer 4

Conditions for assignment, Re Union of London

• DT must be identifiable
• covenant must be for the benefit of the ST
• the person claiming the benefit must retain the ST
• the ST must still be capable of benefitting from the ST
• assignment must be at the time of the transfer

Question 5

Scheme of development

Answer 5

Example - X is the developer of a housing estate. He covenants with each house he builds that they cannot build on top of that. At the end if the development, X no longer has any land to benefit from the covenant. However, each of the individuals can enforce the covenant against themselves.

Question 6

Annexation

Answer 6

This means that the covenant is attached/annexed to the land, and remains with it forever regardless of who owns the land

(1) covenant must touch and concern the land
(2) original parties intended that the benefit run with the land

Express annexation

• words in the deed that created the covenant expressly show this
• Rogers v Hosegood : mention of the land
• Renals v Cowlishaw : no mention of the land, only mention of Covenantee

Implied annexation

• can be implied from the circumstances surrounding the grant of the covenant
• Marten v Flight Refuelling Ltd

Statutory annexation s.78 LPA

• automatically implies intention for the benefit to run
• Federated Homes v mill Lodge Properties
• Crest Nicholson : approved Federated Homes, as long as the DT can be easily identified, and this case is what not
• Roake v Chadha : this section can be excluded by contrary intention