Freehold Covenants

Question 1

P & A Swift Investments v Combined English Stores Group [1989]

Answer 1

Lord Oliver’s test for touching and concerning:

1) Covenant must benefit the estate owner for the time that he owns the land, and it would cease to be of benefit were he to no longer own the land.
2) Covenant must affect the nature, quality, mode, of use, or value, of the benefitted land.
3) Covenant will not touch and concern if it is in some way expressed to be personal to the covenantee.

Question 2

Express Annexation

Answer 2

Words of annexation, particularly:

• This covenant is made for the benefit of a particular, named piece of land (Rogers v Hosegood)
• Describing covenantee as the estate owner.

Question 3

Implied Annexation

Answer 3

Marten v Flight Refuelling Ltd
The court will look at the burdened land and the surrounding area, to find that “an intention to benefit may be found from surrounding or attending circumstances”

Question 4

Statutory Annexation

Federated Homes Ltd v Mill Lodge Properties Ltd [1980]

Answer 4

S78 LPA
Found that where it is clear which land was intended to benefit from the covenant, the covenant was accordingly annexed to the land by s78 LPA 1925.

Question 5

Statutory Annexation

Crest Nicholson Residential (South) Ltd v McAllister [2004]

Answer 5

Crest Nicholson Residential (South) Ltd v McAllister 2004.
The land benefited must be clear from the documents creating the covenant and not just from extraneous facts.
The effect of s78 fails if anything within the documents suggests it was not intended that the benefit should be annexed so as to run with the land after sale.

Question 6

Statutory Annexation

Oxford of Morrells v Oxford Utd FC [2001]

Answer 6

Where other covenants explicitly state intention to run, but one doesn’t, the courts may infer that this means that particular covenant was not meant to be annexed to the land.

Question 7

Burden of Covenants at Common Law

Answer 7

Austerberry v Corporation of Oldham 1885
Rhone v Stephens 1994
The burden of covenants does not run at common law.

Question 8

Burden of Covenants at Equity

Answer 8

Tulk v Moxhay 1838

1) Covenant must be restrictive
2) Covenant must touch and concern the land
3) Parties must have intended the burden to run
4) Purchaser must take the land with notice

Question 9

Burden of Covenants at Equity - Covenant must be restrictive

Answer 9

Haywood v Brunswick : “only such a covenant as can be complied with without expenditure of money will be enforced”

Question 10

Covenantee must retain land benefited by the covenant

Answer 10

London City Council v Allen [1914]
Builder covenanted with the council to not build on a particular land, council did not own any nearby relevant land.
Allen bought the plot, was not bound because covenantee did not own land benefited by the covenant.

Question 11

Positive Covenants - Fencing

Answer 11

Crow v Wood
Fencing is a positive obligation, and therefore generally the burden does not run with the land.
However, Churston Golf Club v Haddock 2019:
If a covenant to fence is specifically set out as a covenant, it will be treated as such - a positive covenant with a burden that does not run.

Question 12

Halsall v Brizell

Positive Covenants: Exceptions to the rule

Answer 12

Easement for right of way over drive, with covenant to help maintain it. Easement binds, but covenant doesn’t run. Held that this was unfair, and that the successor in title could not take the benefit of an agreement unless he was also prepared to accept the related burdens.

Question 13

Rhone v Stephens

Positive Covenants: Exceptions to the rule

Answer 13

Clarified that the burden and benefit must be related to each other; where there is no necessary relationship between the benefit and the burden, the burden will not run.

Question 14

Thamesmead Town Ltd v Allotey [1998]

Problems with positive covenants

Answer 14

A covenant may exist to maintain multiple features but not all will later lead to entitlement. This is resolved by only being required to maintain those that subsequent owners are entitled to take advantage of.
Circumvents the issue of claiming that one does not use a right and therefore should not have to pay for it - by simply holding that if you have the right you are bound regardless.

Question 15

Elwood v Goodman [2004]

Problems with positive covenants

Answer 15

Positive covenant to maintain an estate road, positive covenants are not registrable under the land registration act, therefore they may be difficult to discover and do not reflect the idea that the register should be a mirror of land. Interest overrides, thus the buyer will be bound.

Question 16

Building Scheme

Answer 16

Elliston v Reacher
Requirements for a building scheme:
Claimant and defendants title derived from a common vendor. Before the sale, the common vendor sold land in plots, and similar restrictions were imposed on each. Restrictions intended to benefit each buyer. Lots bought on the basis that the restrictions benefit all owners.

Question 17

Subsequent Case Law since Elliston v Reacher (Building Schemes)

Answer 17

Baxter v Four Oaks Properties Ltd [1965]
Area had not been divided into plots before sale, instead letting purchasers choose lots of varying sizes. Building scheme still found.
Re Dolphin’s Conveyance [1970]
No common vendor, but building scheme still found.