Freehold covenants

Question 1

Definition of a covenant

Answer 1

A promise made by deed to do or refrain from doing something on the promisor’s own land for the benefit of the promisee’s land.

Question 2

For the burden or benefit of copvenants to pass, the land must be reasonably proximate

Answer 2

Kelly v Barratt

Question 3

What remedies are available from the original parties

Answer 3

All of them - privity is present

Question 4

The burden cannot run with the land at law

Answer 4

Austerberry v Oldham

Upkeep of road

Question 5

The burden can run in equity but only under what circs?

Answer 5

Tulk v Moxhay - only if it’s negative

Question 6

What’s the exception that allows the burden of positive obligations to run

Answer 6

the doctrine of benefit and burden: Halsall v Brizall - easement over road inextricably linked with covenant to pay for upkeep

Question 7

The test as to whether a covenant is negative goes to substance not wording

Answer 7

Tulk v Moxhay

Question 8

A case where a positive covenant could not run

Answer 8

Rhone v Stephens - fixing cottage roof

Question 9

There must be a domionant and servient property

Answer 9

Tulk

Question 10

The burden must be intended to run with the land

Answer 10

Tulk

Question 11

The benefit of a covenant can only pass at law against the original covenantor

Answer 11

Prior’s case

Question 12

For a benefit to run it must touch and concern the land

Answer 12

Rogers v Hosegood

Question 13

Which statute assumes that the benefit of a covenant is in tended to run with the land

Answer 13

S78 LPA 1925

Question 14

The covenantee’s successors must have a legal estate in land, but it need not be the same estate

Answer 14

Smith & Snipes Hill Farm

Question 15

The benefit of a covenant can pass in equity in three ways

Answer 15

1. Annexation (express or implied by S78). 2. Assignment (purely personal). 3. Building scheme

Question 16

Example of successful express annexation

Answer 16

Rogers v Hosegood: wording envisaged the land

Question 17

Example of unsuccessful express ANNeXATION

Answer 17

Renals v Cowlishaw: reference only to heirs and assigns

Question 18

The case that says as long as the covenant touches and concerns the land, S78 assumes that it is intended to run

Answer 18

Federated Homes v Mill Lodge Properties

Question 19

What is the case for building schemes and the circumstances where the benefit will pass

Answer 19

Elliston v Reacher: 1. Each purchaser derived title from the same vendor. 2. All plots were laid out prior to conveyance. 3. Each plot identically burdened. 4. All subsequent buyers understand that the burdens are for the benefit of the wholke estate.

Question 20

When does the benefit run

Answer 20

At law and in equity

Question 21

When does the burden run

Answer 21

In equity only and only when restrictive

Question 22

What case rendered copvenants re building density obsolete

Answer 22

Crest Nicholson v McAllister - Decided on policy grounds though shrouded in dicta about vagueness

Question 23

How do you protect a covenant

Answer 23

entry of a notice