Freehold Covenants

Question 1

What is a positive/restrictive covenant? In what does the distinction lie?

Answer 1

Positive = do something. Restrictive = don’t do something. Distinction is in substance (effect), not form (wording).

Question 2

At common law, how may the benefit of a covenant pass expressly to a successor covenantee? Authority.

Answer 2

Express assignment - s136 LPA.

Question 3

At common law, how may the benefit of a covenant pass automatically to a successor covenantee? Authority.

Answer 3

1. Touches & concerns the land (affects value/mode of occupation) - Smith & Snipes Hall Farm.
2. Both parties own a legal estate.
3. Parties intended it to run, by express annexation or statutory annexation under s78 LPA.

Question 4

At common law, will the burden of a covenant pass to a successor covenantor? Case.

Answer 4

No - Austerberry v Oldham Corporation.

Question 5

What is the exception to the rule that the burden of a covenant will not pass at common law? Case.

Answer 5

Mutual benefit/burden rule. If positive covenant attached to benefit of easement, covenantor must take burden if he wishes to take benefit.

Question 6

How may the burden of a covenant pass indirectly to a successor covenantor?

Answer 6

By an express indemnity covenant.

Question 7

At equity, how will the benefit of a covenant pass to a successor covenantee? 1 authority/case.

Answer 7

1. Touches and concerns the land.

2. Parties intended it to run, by express annexation or statutory annexation under s78 LPA/Federated Homes v Mill Lodge.

Question 8

At equity, how may the burden of a covenant pass to a successor covenantor? Case.

Answer 8

Tulk v Moxhay:

1. Restrictive.
2. Touches and concerns.
3. Parties intended it to run, by express/statutory annexation s79 LPA.
4. Registered - IARE or Class D(ii)

Question 9

What are the appropriate remedies for a breach of a freehold covenant if the defendant is still in occupation?

Answer 9

1. Damages.
2. Injunction, for restrictive covenant.
3. Specific performance, for positive covenant.

Question 10

What is the appropriate remedy when suing the original covenantor, if he is no longer in occupation?

Answer 10

Damages.

Question 11

In what 3 ways may a covenant be released? 1 authority/case.

Answer 11

1. Express release.
2. Common ownership.
3. Application to Lands Tribunal - s84 LPA/Re Vince’s Application.