Freehold Covenants: Introduction Flashcards
Define a ‘covenant’ in the context of property law.
A covenant is a legally binding promise contained in a deed, typically concerning the use or development of land.
It is recognised and enforceable under contract law principles, even though consideration is not essential for covenants contained in deeds.
Why is consideration not deemed essential for a covenant contained within a deed in property law?
Consideration is not essential for a covenant within a deed because the covenant itself, being formalised in a deed, satisfies the requirements for a binding agreement under contract law principles, distinct from traditional contracts where consideration is crucial.
Can the term ‘covenant’ extend to any enforceable promise on land use not included in a deed?
Yes, the term ‘covenant’ can extend to any enforceable promise regarding land use, even if not contained in a deed, as long as it meets the legal criteria for enforceability.
Explain why covenants are not recognised as legal interests in land and reference the relevant legislation.
Covenants are not recognized as legal interests in land according to s 1(2) of the Law of Property Act 1925, which does not list them among legal interests. Therefore, they can only be equitable interests, as per s 1(3)of the same Act.
What is the minimum legal formality for creating a covenant as an equitable interest, and under what legislation?
The minimum legal formality for creating a covenant as an equitable interest is signed writing, as required by s 53(1)(a) of the Law of Property Act 1925, ensuring its enforceability without the need for a deed in some cases.
In what common property transaction are covenants usually imposed, and what might such covenants stipulate?
Covenants are commonly imposed in transactions involving thesale of part of an individual’s land, stipulating conditions like boundary fencing or building restrictions to protect the original owner’s remaining property interests.
Can covenants be created independently of land ownership transfers, and how might such arrangements be formalised?
Yes, covenants can be created without transferring land ownership, typically through a deed in which one party agrees to certain conditions, like land use restrictions, in exchange for compensation, formalising the covenant outside the context of a property sale.
How are covenants distinct from easements in their capability of being legal?
Easements can be legal or equitable, as per s 1(2)(a) of the Law of Property Act 1925, if they meet specific requirements, like being granted for a fee simple absolute in possession or a term of years absolute.
In contrast, covenants are only equitable as outlined in s 1(3) of the same Act.
How do formalities differ in the creation of legal easements compared to covenants?
To create a legal easement, a deed is required, and for land with a registered title, an entry must be made on the register. If these formalities are not met, the easement may be considered equitable.
Covenants, being equitable, do not have the same formalities for their creation.
Why are easements more restrictive than covenants in terms of the rights they cover?
Easements are more restrictive because the courts are reluctant to recognise all rights over land as easements, such as a right to a view, which is considered too broad.
Covenants, on the other hand, are more flexible and can cover a wider range of agreements, like preventing construction to protect a view on sold land.
Describe the typical wording used to create easements and covenants in legal documents.
To create an easement, the wording “together with the benefit of” is used, such as in granting a right of way.
For covenants, the typical wording is “A covenants with B,” indicating a direct agreement between two parties.
What is the difference between positive and restrictive covenants, and how is this distinction determined?
Covenants can be positive (requiring action or expenditure) or restrictive (limiting use or actions).
The distinction is based on the substance of the covenant rather than its form, with positive covenants often identifiable by whether they necessitate the covenantor to “put his hand in his pocket” or incur a cost.
Who is a covenantor in the context of covenants in property law, and what does it imply for the land?
In property law, the covenantor is the individual who makes the promise within a covenant.
The land associated with this promise carries the burden of the covenant, meaning it is subject to the conditions or restrictions outlined by the covenantor.
Define ‘covenantee’ and explain the implication for their land in a covenant agreement.
The covenantee is the recipient of the promise in a covenant agreement.
Their land gains the benefit of the covenant, ensuring that certain favorable conditions or restrictions apply, enhancing the land’s value or use for the covenantee and their successors.
What does ‘annexation’ mean in the context of covenants, and how does it affect property rights?
Annexation in covenants means that the benefit of the covenant is attached to the covenantee’s land, ensuring that this benefit is automatically passed on to any successors in title.
This process makes the covenant’s benefits an enduring attribute of the property, beyond the original parties involved.
