Freehold Covenants Flashcards
PA Swift Investments v Combined English Stores
Rules for passing benefit at common law (implied assignment)
1) Must touch and concern land
Must affect the nature, value, quality or convenience of the land
2) Original parties must have intended benefit to pass
3) Original covenantee must have held legal estate
4) Successor in title to original covenantee must hold legal estate
Newton Abbot v Williamson & Treadgold
A covenant not to compete with a business carried out on covenantee’s land may touch and concern dominant land
London CC v Allen
Benefit cannot pass at common law where covenantee does not hold legal estate
Burden will pass at equity if covenantee had an interest in the dominant land and the successor in title has an interest
Smith & Snipes Hall Farm v River Douglas
Successor in title does not need to hold the same legal estate as the original covenantee
Austerberry v Oldham Corporation
General rule - burden does not pass at common law
Tophams v Earl of Sefton
Original covenanter retains burden of covenant
Halsall v Brizell
Cannot take the benefit of covenant without corresponding burden
Thamesmead Town v Allotley
Must be close correlation between burden and benefit
Davies v Jones
Benefit and burden must arise from same transaction
Rhone v Stephens
Must have choice regrading whether to take the benefit subject to the burden - did not have a choice about right of support
Cannot enforce positive covenants against successors in title
Tulk v Moxhay
Rules for passing burden at equity
1) Must be negative in substance
2) Must accommodate dominant tenement
3) Original parties must have intended burden to run
4) Person against whom the covenant is being enforced must have notice when purchased land
Haywood v Brunswick
Hand in pocket test - can the covenant be fulfilled by doing nothing?
Shepherd Homes v Sandham
If covenant can be severed - burden of negative part will pass
Powel v Hemsley
If covenants are closely linked, might be overall positive/negative
Bailey v Stephens
Proximity between two pieces of land will demonstrate that the dominant land actually derives benefit
Morrells v Oxford United FC
Implied intention that burden should run under s79 LPA 1925 unless contrary wording in covenant
Renals v Cowlishaw
Benefit will pass in equity if it touches and concerns land via:
1) Annexation - attached to dominant land for benefit of successors in title
2) Statute - s78
3) Assignment - personal transfer
Federated Homes v Mill Lodge Properties
Covenant is annexed to each and every part of land
s78 LPA 1925 automatically passes the benefit of restrictive covenants to future owners
Roake v Chadha
s78 LPA 1925 applies unless contrary intention (expressly excluded)
Crest Nicholson Residential v McAllister
Deed must make clear reference to land which is benefitted
Prospective purchaser of servient land should be able to identify the benefitted land from inspecting register
Small v Oliver Saunders Developments
Pre-1926 covenants must be expressly annexed
Miles v Easter
Benefitted land must be properly identified and assignment can only be made at the time of conveyance
Elliston v Reacher
Benefit can be passed in building scheme:
1) All purchasers by property from same vendor
2) Vendor divides estate into plots prior to sales
3) Restrictive covenants intended to continue for benefit of other plots
4) Every purchaser acquires plot on understanding that covenants benefit all other plots
Reid v Bickerstaff
Area of building scheme must be clearly defined
