Freehold Covenants - Running of benefit In equity Flashcards
What are the 2 ‘annexation’ conditions needed in order for the benefit to pass in equity?
What is the alternate option?
🔳 the covenant must touch and concern the land - quote 89 Holland Park (Management ) Ltd v Hicks (2013)
Covenantee must own a legal estate in the dominant land - Webb v Russell (1789)
🔳 the original parties must’ve intended for the benefit to run with the land - as with common law, this is implied by S78 LPA 1925
S78 applies here (for post 1925 covenants) just as it does for common law. Illustrated in the important case of Federated Homes v Mill Lodge (1980) - whereby Lord Justice Brightman established that S78 implies the intention
Contrast with Renals v Cowlishaw (1879)
OR
🔳 you must prove that a scheme of development exists
What’s the need to look at benefit in equity when we have common law?
🔳 you may not meet all of the common law conditions
🔳 certain situations are not covered by common law
What does Annexed mean?
Attached to the land
What does the following case relate to?
Renals v Cowlishaw (1879)
Pre LPA 1925 - S78
Implies the requirement that the original parties intended for the benefit of the covenant to run with the land
Name a recent case showing the annexation requirement
Crest Nicholson v McAllister (2004)
Held that there was automatic annexation, but brought about the second rule that the covenant had to make some form of reference to the land to be benefitted and it had to be easily identified by a plan.
In this case, the benefited land couldn’t be identified and so the benefit of the covenant did not pass
Can you exclude S78?
Yes, by adding wording to the covenant to that effect.
Sugarman v Porter (2006)
What about a condition to obtain consent from the covenantee, for say building on the burdened land. Would this requirement pass to the covenantee’s successors?
This depends on the wording of the covenant. If it specifically says consent of the transferor or its successors then yes, if it omits the words ‘and its successors’ then no and S78 will not be implied as shown in the following case:
City Inn (Jersey) Ltd v Ten Trinity Square Ltd [2008]
What are the 3 types of annexation?
🔳 Express
🔳 Implied
🔳 Statutory
Apart from confirming the implication of S78, what else did the following case establish?
Federated Homes v Mill Lodge [1980]
Once a covenant is annexed, it benefits each and every part of the dominant land. So if Fred had sold that part of Greenacres called the Orchard to Victor and a few years later sells the part of Greenacres Called Meadow Green to Bob, the part sold off to Bob will benefit from the restrictive covenant given by Victor and Bob can still enforce the covenant against Victor.
This can backfire if the original covenantee changes his mind - say he runs low on cash and the original covenantor offers to give him a cut on the sale proceeds of a development he could carry out on the land he bought. The
What’s the case of Tulk v Moxhay [1848]
Established the fact that in equity, only the BURDEN of a restrictive covenant can pass to successors in title, subject to the 4 conditions set out therein.
