Freehold covenants Flashcards
Freehold covenants
Promises to do with the use/enjoyment of land
positive covenants = force person to do something
negative covenants = restrict person from doing something
Exception to the rule of privity.
What is needed to enforce a covenants?
The BURDEN and BENEFIT needs to pass
Passing the BURDEN at COMMON LAW - rule
The general rule is that the burden will not pass at common law - Austerberry v Oldham
- policy decision, courts did not want land to become fettered with too many obligations.
Recently upheld in Rhone v Stephens where CoA thought the rule would be abolished.
- HL held it is for parliament to change
- abolishing rule could cause difficulties and anomalies for people who have relied on the rule for over 100 years
Common law exception of passing the burden
Doctrine of mutual benefit and burden
- where covenantor gains a benefit would be unfair not to impose a burden
Halsell v Brizell
- plot owners were bound to contribute for maintenance of roads if they wanted to use them for access
Passing the BURDEN in EQUITY - the 4 requirements
Burden can pass in equity if 4 requirements in Tulk v Moxhay met
1) Covenant needs to be negative
2) Common intention that covenant should run with land
3) Must benefit dominant tenement
4) Registration
George argues historically developers put in covenants to try them out and the court had to step in to protect commercial buildings
1) Covenant needs to be negative
- Equity will not assist with positive covenants
- Haywood v Brunswick gave starting point: if the covenantor has to put his hand in his pocket ie it will cost him then it is a positive covenant
- Davies v Bramwell: LJ Lloyd stated attempts to enforce positive covenants have been hopeful rather than realistic
2) Common intention that the covenant should run with the land
i.e. be enforced down the line.
If not mentioned expressly in the wording
- can presume under s79 LPA 1925
- provided no contrary intention (Morrells v Oxford United).
Rhone v Stephens confirms s79 operates in this way.
3) Must benefit dominant tenement
Covenants cannot exist in gross
Formby v Barker
- Must ‘touch and concern’ the land
- Land must benefit practically in terms of value and enjoyment, personal idiosyncrasies would fail at this point
LCC v Allen
- Allen argued she could not be burdened by covenant as council did not have land which could benefit from it
4) Registration
If land is registered, covenant must be protected as minor interest under s32(1) Land Registration Act 2002
If unregistered must be recorded under s2(5) Land Charges Act 1972
Passing the BENEFIT at common law
Expressly
Impliedly
Passing the BENEFIT in EQUITY
The three ways
Miles v Easter
- the burden is passed in equity it is logical to use equity to pass the benefit
- Gray argues this is too simplistic
- Annexation
- Assignment
- Building schemes
What is annexation?
Annexation is the permanent attachment of a covenant to the land - ‘buried treasure’
Once annexed, covenant continues to be passed unless there is a modification/discharge
Statutory annexation is the most significant method of passing the benefit in equity
Statutory annexation
Concerns s78(1) LPA 1925.
Federated Homes
- a ‘revolutionary’ case (Hayton) which simplified law
- interpreted s78 go have the effect of annexing a covenant to the land even if there is no express assignment
Further clarifications after Federated Homes
Roake v Chadha
- s78 will not apply if there is a contrary intention
Sainsbury v Enfield
- s78 only applies to covenants created after 1926
Crest v McAllister
- the land that is to be annexed must be clearly identifiable
Assignment
- Importance diminished after Federated Homes
- Requires express assignment each time land is conveyanced so s78 would be easier
