Land 4 - Freehold Covenants Flashcards
What is a mixed covenant? How can it be dealt with?
One that contains both positive and restrictive elements:
- may be separated into different covenants if possible; (don’t do X, but do Y)
- seen as one obligation with a condition attached (not to do X without consent) in which case whole is viewed as either positive or restrictive.
What process should one follow when determining whether benefit/burden of a freehold covenant has passed to a successor covenantor/covenantee?
- restrictive covenant = equity.
- positive covenant = common law
Apply relevant rules
What are equity rules for BURDEN of a restrictive covenant passing?
- Must be restrictive covenant
- Must benefit the dominant tenement:
- Must benefit land, not owner;
- land must be proximate
————————————————— - Intention for burden to run (assumed)
————————————————— - Notice of covenant:
*registered = notice on Charges Register;
*unregistered = D(ii) Land Charge
What are the equity rules for BENEFIT of a restrictive covenant passing?
- Covenant must ‘touch and concern’ the dominant land
- Benefit must pass by either:
- Annexation (fixed to land express or statutory) assumed
- Assignment (expressly gives benefit to next purchaser)
- Building Scheme
What are the equitable remedies for breach of restrictive covenant?
Most common = injunction (prohibitory or mandatory)
Damages but not as of right
Equitable principles apply e.g. delay
How can burden of positive covenants pass at common law?
- chain of indemnity
OR
- benefit & burden:
- same time
- linked
- theoretical agreement
What are 2 ways BENEFIT of a positive covenant can pass to the new dominant owner at common law?
- Express Assignment:
- in writing;
- express notice of assignment given to covenantor - Implied Assignment:
- intention for benefit to run (assumed s78);
- original covenantee has legal estate in dominant land when covenant made;
- successor has legal estate at time of enforcement
What are 4 methods of discharging/modifying covenants?
- Merger (same person owns both plots)
- Express Release/Modification (deed)
- Implied Release/Modification (doing nothing in face of open breach)
- S84 LPA 1925 (only for restrictive covenants)
What is a positive covenant?
Requires you to do something
What’s a negative covenant?
Requires you not to do something.
What are the two sets of rules that apply to covenants?
- Equitable
- Legal
Two should not be mixed
Can positive covenants be enforced against a successor under equity?
No
What’s required for building scheme?
Only applies to restrictive covenants:
- all buyers from same seller
- seller divided into plots
- covenants intended to benefit all plots
- each buyer knows intention to benefit all plots.
What is the exception to positive covenants pass at common law?
Exception to General Rule: mutual benefit and burden rule =
- clear link between benefit & burden
- genuine choice to take benefit or not
- benefit & burden conferred in same transaction
E.g. benefit from drains but help pay for upkeep
Does a chain of indemnity allow the person with the benefit of a positive covenant to sue the current occupant?
No - the chain means it’s the original contractor who is liable.
