Freehold Covenants Flashcards
What is a covenant?
A promise to do or not do something. Can be either negative or positive
Formalities
- S1(1) LPA 1925 - A covenant is not a legal interest in land. Equitable interest.
- S53(1)(a) LPA 1925 - Must be made in signed writing. Does not have to be deed, but generally is.
Terminology
- Covenantor - Person who makes the promise
- Covenantee - Person who receives the benefit of the promise
- Dominant land - Land which is benefited by the covenant
- Servient land - Land which is burdened by the covenant
- Successor - Person who acquires land from either covenantor or covenantee
Express assignment at common law
- S136 LPA 1925 - Benefit can be passed at common law
- Requires evidence in writing
- Requires notice to covenantor
Implied assignment at common law
Implied assignment is possible at common law, rules come from P & S Swift v Combined Investments
Rules for passing benefit at common law through implied assignment;
P & A Swift Investments;
- Touch and concern land
- Intended burden to pass
- Covenantee held legal estate at time of covenant
- Successor holds legal title
Touch and concern land
P & A Swift;
- Covenantee would cease to benefit if no longer owner of land
- It affects the nature, quality, value or mode of user
- It is not expressed to be personal
Hill v Tupper
A covenant which is only relevant to the person not the land is a personalty and will not pass as does not touch and concern the land.
Newton Aboot v Williamson Goldtread
A covenant not to set up a rival business will affect the land as any rival business would detract from the value of the land
Wrotham v Parkside
Negative covenants can generally be viewed as beneficial to the dominant land, as a restriction on the neighbours land will generally confer a benefit to the dominant land regardless of the content of the covenant
S78(1) LPA 1925
Implied intention for the benefit to run
Smith v Snipes
Successor can hold land in different form provided it is a legal estate. Could hold as lease when originally granted as freehold
Austeberry v Oldham
The burden does not pass at common law
Rhone v Stephes
COnfirmed that the burden does not pass at common law
Topham v Earl of Sefton
As the burden does not pass at common law the original covenantor remains liable for any breaches of covenant
Halsall v Brizell
Exception to the rule that the burden does not pass at common law. The burden will pass according to the doctrine of mutual benefit and burdn
Rhone v Stephens (2)
Must be a very close link between the benefit and burden for the rule in halsall v Birzell to apply
Thamesmead v Allotey
There must be a choie whether to use the benefit or not
Tulk v Moxhay
Laid out the conditions for the burdem to pass at equity;
- Covenant must be negative
- Covenant must sccomodate the dominant tenement
- Burden must be intended to run
- Notice
Haywood v Brunswick
Test to see if the covenant is negative, hand in pocket test
Shepherd Homes v Sandham
If covenant can be split into negative and positive elements then the negative element will be enforced
Powell v Hemsley
If the covenant is mixed and cannot be split then the covenant will be judged to be overall positive or overall negative , and then enforced or not accordingly. If the positive element is a condition of the negative covenant then it will be overall a negative covenant. In this case a covenant not to build without submitting plans was held to be overall negative as the positive element (building plans) was just a condition of the overall negative covenant not to build
Rhone v Stephens (3)
Equity cannot enforce positive covenants
What are the elements of the ‘dominant tenement’ test?
P & A Swift - Touch and concern
Bailey v Stephens - Proximity
LCCv Allen - When the covenant was created there must have been a dominant tenement and there must be a dominant tenement to enforce the covenant at the point of enforcement
Burden intended to run
- Express wording
- Implied from S79 LPA 1925
Morrels v Oxford
S79 LPA 1925 can be rebutted where a contrary intention is evidenced
Registering of covenant in equity
S32 LRA 2002 - Notice on the charges register
S29(2) LRA 2002 - If registered binds the world
S29(1) - If unregistered then a PFV takes free of the covenant
Rules for registering of unregistered land in equity
LCA 1972 S2(5) - Covenant must be registered using a Class D(II) land charge
S198 LPA 1972 - If registered will bind the world
S4 LCA 1972 - If not registered then doctrine of notice applies
Passing of benefit at equity
Covenant must touch and concern the land
Covenantee must be entitled to the benefit
Renals v Cowlishaw
3 methods of touching and concerning
- Annexation
- Assignment
- Building scheme
Express annexation
Deed can state that the benefit is attached to the land
Rogers v Hosegood
Covenant must state that the covenant is for the land itself ‘for the benefit of the land itself’
Wrotham v Parkside
Covenant is made for every part of the land
Statutory annexation
S78 LPA 1925 - Has the effect of automatically attaching the benefit to the land
Federated Homes v Mill Lodge
Interpreted S78 to mean that benefit is automatically annexed to the whole of the land
GH Newsom
Criticises interpretation in Federated Homes in making annexation automatic, as not parliaments intention
Roake v Chadka
s78 LPA 1925 can be excluded, and is not compulsory and can be opted out of. Words used in this case to exclude s78 benefit not attached to land ‘unless expressly assigned’
- The benefit will only pass to those who it is expressly assigned
Assignment
Where benefit is expressly assigned every time property changes hands
- Requires s53(1)(c) compliance
Miles v Easter
Benefit can be ecpressly assigned
Building scheme
o Elliston v Reacher; Where the following conditions are met all buyers take subject to a freehold covenant
All purchasers acquire from same vendor
Divided into plots
Covenants intended to continue
Covenant benefits all plots
How can covenants be disharged?
- Expressly agree to discharge
- Implied by long disusage
- 1 party owns both dominant and servient land
- S84 LPA 1925 – Court ordered discharge (generally due to changes in the character of the neighbourhood)
Shaw v Applegate
Where covenant not used for a while, but not so long so as to fall into ‘disuse’ a remedy of an injunction was not available as covenantee has lulled covenantor into a false sense of security, so only damages were available
Crest Nicholson v McAllister
Benefit will not be attached to the land through statutory annexation where the extent of the land benefited is unclear as this would impose too large a burden on the purchaser
