Freehold Covenants Flashcards
Definition
A promise generally contained in a deed from one freehold owner to another freehold owner to do/not do something on their land. Enforceable without consideration
Transmission of burden at equity
Tulk v Moxhay:
- covenant must be negative
- must accommodate the dominant tenement
- original parties intended the burden to run
- notice
Negative covenants - hand in pocket test
Haywood v Brunswick
Where covenant contains positive and negative undertakings, it may be possible to sever the positive undertaking from the negative. Both parts must be capable of standing alone
Shepherd Homes v Sandham (No 2)
Where covenant contains positive and negative undertakings, it may be possible to construe the covenant as a positive covenant overall, with a negative condition (vv)
Powell v Hemsley
Covenant must accommodate the dominant tenement
- covenantee and successor must have retained interest in the land at the date of the creation and enforcement of the covenant respectively - LCC v Allen
- Covenant must touch and concern the land
- servient and dominant lands must be sufficiently proximate to each other - Bailey v Stephens
Covenant must touch and concern the land
Dominant land must benefit from the covenant, not a mere personal privilege
P&A Swift - affects nature, quality, mode of use or value of dominant land; not expressed to be personal; payment of money does not prevent it touching and concerning land
Wrotham v Parkside - any activity on neighbouring land is likely to affect the dominant land
Original parties intended the burden to run
Intention to bind future successors of the servient land may be express or implied under s79 LPA/Morrells of Oxford (unless contrary intention expressed)
Purchaser of servient land must have notice of covenant to be bound by it
Registered land - notice on charges section of servient property - s32 LRA - if entered, binding on everyone; if not, purchaser for valuable consideration will take free from it (s29 LRA), donee will be bound
Unregistered land
- pre-1926 covenant - doctrine of notice
- post-1926 covenant must be registered as Class D(ii) land charge under LCA 1972. Registration gives requisite notice (s198 LPA); if not registered, it is void against a purchaser for money/money’s worth of a legal estate - s4(6) LCA
If burden does not run, the covenant is lost forever and cannot be revived
Wilkes v Spooner (unregistered land, presumed the same for registered)§
Benefit at Equity
- Covenant must touch and concern the land
- Successor in title must have become entitled to benefit either by annexation, assignment or a scheme of development (Renals v Cowlishaw)
Annexation
Benefit tied to land when covenant made -automatically passes:
- express -language must be sufficiently clear (Rogers v Hopwood)
- implied (rare) - Newton Abbot v Williamson & Treadgold
- statute - s78(1) LPA
Annexation will not fail if area of land is too large - covenant capable of benefitting 7500 acre plot of land
Marten v Flight Refuelling
Covenant that is annexed to the whole is also annexed to the part
Federated Homes v Mill Lodge
s78(1) LPA is sufficient to annex benefit to land; express annexation not required
Federated Homes v Mill Lodge
s78(1) can be expressly excluded
Roake v Chadha
Deed must make clear reference to the land which is benefitted
Crest Nicholson
Pre-1926 covenant must be expressly annexed
Small v Oliver and Saunders
Assignment
- express
- land must be identified and assignment made at time of conveyance (Miles v Easter)
- assignment must comply with s53(1)(c)
- must be repeated every time land sold/given away
Scheme of development
Elliston v Reacher
- both C and D derive title from common vendor
- prior to sale of both plots, vendor subject both plots to similar covenants and intended them to be imposed on all plots
- restrictions intended to benefit all the plots sold
- C and D bought on the basis that restrictions would benefit all plots
Benefit at common law
- express assignment under s136 LPA as a chose in action: must be in writing and notice in writing of assignment given to original covenantor
Implied passing of benefit at common law
P & A Swift:
- touch and concern land
- original parties intended benefit to run with covenantee’s land (express; implied under s78(1) LPA
- covenantee held legal estate at the time the covenant was made
- successor in title to covenantee holds legal estate in land
Successor does not need to hold same legal estate as the original covenantee
Smith & Snipes Hall Farm v River Douglas
Burden at common law
Burden never passes - Austerberry v Oldham Corporation, confirmed in Rhone v Stephens
Pursue the original covenantor
Original covenantor remains liable - express of implied in s79(1)
s79(1) does not make successors liable but makes original covenanter should liability even after he has parted with his interest
Tophams v Earl of Sefton
Burden at common law - exception
Halsall v Brizell:
Where deed grants benefit in the nature of a service or facility, but also imposes a connected burden, servient owner cannot taken the benefit and ignore the burden but can choose to reject both.
BUT if no real choice but to take benefit (e.g. private road is sole means of access to property), usual common law rules apply and burden will not pass
There must be a correlation between the benefit and the burden
Rhone v Stephens
Damages in lieu of injunction
Wrotham Park Estate
Extinction/modification of restrictive covenants
Agreement - express of implied by use
Declaration by court - s84(2) LPA
Discharge by Upper Tribunal (Lands Chamber) - s84(1) LPA
Covenant not to compete with neighbour’s business may touch and concern land
Newton Abbot v Williamson & Treadgold
