Introduction Flashcards
What is a positive covenant
promise to build a wall; promise to contribute to cost of repairs of a road.
What is a restrictive covenant
not to use premises for business purposes; covenants to build only one house on a plot of land.
What is a covenant in general terms
- A promise contained in a deed. It may be positive or restrictive.
Why are covenants used
They may be used to try and preserve and control the amenity of an area e.g. impose idea of ensuring an area remains residential
Who do covenants bind?
Covenant always bind original parties but they will not achieve their aim if they only bind the original parties. If covenants are only effective between original parties, then the purchaser only needs to sell land on and the covenant will not bind the second purchaser and original land owner has not achieved his aims therefore must also be available to a SIT
How can a covenant be created
By deed s 52 LPA and S 1(2) LP (MP) A
Privity of contract
will always remain liable and can sue for breach of covenant
Usually only parties to a covenant can sue unless
S 56 LPA applies which allows a person not party to the covenant to sue if the covenant was purported to be made with him, rather than just conferring a benefit on a unidentifiable third party
Contract (Rights of TP) Act
Contracts (Rights of third Parties) only applies to covenant created after the 11th MAY 2000
Why might a SIT want to take action
A covenant will remain liable between the original parties, but where unlike to take action as no longer has the land, but a IST may want to take action, the only way can do this is to show that the benefit of the covenant passed
Issue of enforceability against original parties
The original will remain liable for damages, he may be unidentifiable and will be limited to damages and not provide any motivation to stop the breach, therefore can bring a claim against the SIT if it can be shown that the burden passed to him.
