Land 4 - Negative Covenants

Question 1

What is a mixed covenant? How can it be dealt with?

Answer 1

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.

Question 2

What process should one follow when determining whether benefit/burden of a freehold covenant has passed to a successor covenantor/covenantee?

Answer 2

• restrictive covenant = equity.
• positive covenant = common law

Apply relevant rules

Question 3

What are equity rules for BURDEN of a restrictive covenant passing?

Answer 3

• 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

Question 4

What are the equity rules for BENEFIT of a restrictive covenant passing?

Answer 4

1. Covenant must ‘touch and concern’ the dominant land
2. Benefit must pass by either:
   - Annexation (fixed to land express or statutory) assumed
   - Assignment (expressly gives benefit to next purchaser)
   - Building Scheme

Question 5

What are the equitable remedies for breach of restrictive covenant?

Answer 5

Most common = injunction (prohibitory or mandatory)
Damages but not as of right
Equitable principles apply e.g. delay

Question 6

What are 4 methods of discharging/modifying covenants?

Answer 6

• 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)

Question 7

What’s a negative covenant?

Answer 7

Requires you not to do something.

Question 8

What’s required for building scheme?

Answer 8

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.

Question 9

What is required for a s.84 discharge/modification?

Answer 9

• only applies to restrictive covenants
• apply to Lands chamber
  Grounds:
• obsolete, or
• hinders reasonable use, or
• express or implied agreement, or
• dominant will not suffer