Freehold covenants Flashcards
Definition of a covenant
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.
For the burden or benefit of copvenants to pass, the land must be reasonably proximate
Kelly v Barratt
What remedies are available from the original parties
All of them - privity is present
The burden cannot run with the land at law
Austerberry v Oldham
Upkeep of road
The burden can run in equity but only under what circs?
Tulk v Moxhay - only if it’s negative
What’s the exception that allows the burden of positive obligations to run
the doctrine of benefit and burden: Halsall v Brizall - easement over road inextricably linked with covenant to pay for upkeep
The test as to whether a covenant is negative goes to substance not wording
Tulk v Moxhay
A case where a positive covenant could not run
Rhone v Stephens - fixing cottage roof
There must be a domionant and servient property
Tulk
The burden must be intended to run with the land
Tulk
The benefit of a covenant can only pass at law against the original covenantor
Prior’s case
For a benefit to run it must touch and concern the land
Rogers v Hosegood
Which statute assumes that the benefit of a covenant is in tended to run with the land
S78 LPA 1925
The covenantee’s successors must have a legal estate in land, but it need not be the same estate
Smith & Snipes Hill Farm
The benefit of a covenant can pass in equity in three ways
- Annexation (express or implied by S78). 2. Assignment (purely personal). 3. Building scheme
Example of successful express annexation
Rogers v Hosegood: wording envisaged the land
Example of unsuccessful express ANNeXATION
Renals v Cowlishaw: reference only to heirs and assigns
The case that says as long as the covenant touches and concerns the land, S78 assumes that it is intended to run
Federated Homes v Mill Lodge Properties
What is the case for building schemes and the circumstances where the benefit will pass
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.
When does the benefit run
At law and in equity
When does the burden run
In equity only and only when restrictive
What case rendered copvenants re building density obsolete
Crest Nicholson v McAllister - Decided on policy grounds though shrouded in dicta about vagueness
How do you protect a covenant
entry of a notice
