LAND

Question 1

exact meaning of a covenant may change over time

Answer 1

Dano v Earl CADOGAN 2003
Covennant: housing the working classes
Interpreted modern times as #those with suff. low incme that required inexpensive accommodation#

Question 2

what does LPA 1925, s.56 state?

Answer 2

A person may take the benefit of any condition covenant or agreement over or respecting land although he may not be named as party to the conveyance or other instrument

Question 3

Even tho not party to original deed, person expressed in conveyance for whose benefit it was made may sill be regarded as original convenantEE even thou not parry

Answer 3

Re Ecclesiastical Commissioners 1936

Question 4

Common law mischief and s.56 LPA

Answer 4

person could not sue on a deed unless they were named on that deed - not even a description would
help, even “the current owner of Numner 73”.

==> rectified by s.56 LPA 1925
=> but at the time deed was made must be existing and identifiable?
==> which even went further
==> consider also RIghts of 3 Parties Act 1999 s.7(1)

Question 5

Position after sale by ConvenantEE/Does Benefit pass to new owners?

Answer 5

At time COV made, covenantEE must have had land benefited by the COV
AND
Yes if 4 conds met, which are:
1. Covenant must touch ad concern the land of the CovenantEE
2 at time Convenant COV made, it must have been intention of parties that the benefit would run with the land
3 at time COV made, the covenantEE must have held the legal estate in the land to be benefited; AND
4 claimant must derive title ufrom or under the original Covenantee (LPA s. 78)

Question 6

Test in P & A Swift on whether a convenant touches and concerns land

Answer 6

1 COV must benefit the estate owner for the time being and it would cease to benefit the covenantEE if it were separated from the ownership of the benefited estate.
2 COV must affect nature, quality, mode of use or value of the benefited land
AND COV not expressed to be personal to the CovenantEE

Question 7

COV and touch and cncern land?

not to sell No 18 to a family with children (Miss O original Conventee was old and didnt like them making a noise)

Answer 7

seems not to confer benefit on land irself but a personal benefit ==> does not touch land => does not pass to new owners

Question 8

How to determine if it was intention to have benefit run with land? Clause

Answer 8

The CovenantEE, his successors in title, and those deriving title under him BUT
now DEEMED IMPLIED AS Per LPA 1925 s.78(1)

Question 9

Effect of Smith and SNipes Hall v River DOuglas 1949

Answer 9

HLED s.78 LPA 1925 has effect of extending the right to enforce a covenant to such a tenant , who derived title under the Freeholder
==> chose in action thus can be assigned

Question 10

Sale by Covenntator. Does burden pass to new owner?

Answer 10

Basic Rule Common Law No.
=> strict rule of contract
Austerberry v Corporation 1885

Question 11

What is a fee simple?

Answer 11

??

Question 12

Obligation to make up a road and keep it in good repair

Answer 12

burden could not pass with successors
Austerberry v Corporation 1885

reaffirmed by Rhone v Stephens 1994
covenant to maintain a roof.
=> as per law of contract, Benefit not burden can transfer to 3P

BUT can run in equity
=> fair that purchaser was aware of covenants when purchasing land should be burdened by them
Tulk v Moxhay

Question 13

Burdened land formed centre of Leicester Sqaure in london. COV would maintain the square as an ornamental open space

Answer 13

Tulk v Moxay
==> liberal view taken by Lord Cottenham of the power to intervene in an inequitable case (where acquirer simply ignored COV knowing burden could not be transferred)
==> p 579 LAND
=> 1st attempt to introduce land-use planning by non-statutory means

Question 14

When will burden pass as under the Tulk v Moxhay doctrine?

Answer 14

1 Covenant COV must be negative
2 at the date of the COV, the covenantEE must have owned land which was benefited by the Covenant
3 original parties must have intnded that the burden should run to bind successors (LOOKS FAMILIAR) AND
4 As the rule is equitable, general equitable princples apply

Question 15

1 Covenant COV must be negative

Answer 15

=> in Tulk v Moxhay it was that owner of land abutting the square should keep the Leicester square open and not erect buildings

==> cf Haywood v Brunswick Permanent Benefit 1881
Lindley LJ #only such a covenant as can be complied with without expenditure of money will be enforced#

Question 16

to keep the exterior of a hosue n repair

Answer 16

Positive burden => fails Tulk v Moxkay (mist be negative)

Question 17

contribute one half of the cost of maintaining the driveway shared with land of covenantEE

Answer 17

Positive burden => fails Tulk v Moxkay (mist be negayive)

Question 18

only such a covenant as can be complied with without expenditure of money will be enforced

Answer 18

Lindley LJ in Haywood v Brunswick Permanent Benefit 1881

Question 19

COV: not to allow premies to fall into disrepair positive or negative COV?

Answer 19

positive covenant =? since to comply with it will require Expenditure

Backed up by Cotton in
Austerberry v Corp 1885
tp expend sums of mpney=> equity shall not intervene

Reaffirmed by rule on roof repair in Rhone v Stephens 1994

Question 20

Application of Equitable Principles.

Answer 20

==> General Equitable Principles will apply
==> Ex: He who comes to equity must come with clean hands
==>

Question 21

Three rights of enforcement of covenant by purchaser of benefited land

Answer 21

1 By annexation
2 Express assignment of the benefit of the COV
3 Under special rules relating to building schemes

Question 22

What did decison in Federated Homes v Mill Lodge 1980 do?

Answer 22

COVENANT was by D not to build more than a certain number of dwellings on burdened land.

Question 23

To paint the exterior woodwork of the property every 5 years with two coats of good quality dark blue paint
Touch and concern with land?

Answer 23

(Debatable)
Could be seen as personal to CovenantEE but what about fitting it with rest of street

Variant
Neon green

Question 24

TO PAINT THE EXTERIOR PROPERTY EVERY 5 Y WITH TWO COATS OF GOOD QUALITY DARK BLUE PAINT Covenant

Answer 24

Has both positive and restrictive
==› can be severed out

Making someone paint is positive
Choice of colour is restrictive

Question 25

Final condition of Tulk v Moxkay

What does TvM relate to?

Answer 25

Tulk v Moxkay
Whether burden when restrictive can pass in Equity

That the Covenantor must have notice (rules on enforceability and registered or unregistered title) apply

Question 26

Covenant to keep land in good repair was breached.

Whether burden could pass at common law

Answer 26

Austerberry v Oldham 1885

GR burden can’t pass at common law

Question 27

Plot of land sold to D with covenant to build no more than 3000 homes. D obtained planning permission to build more. C had bought 2 plots. 1 did not have covenant expressly assigned. Covenant annexed to all plots?

Answer 27

Federated Homes v Mill Lodge 1980

Statutory annexation S.78 LPA 1925 to transfer benefit is allowed to every part of land.

HELD
Land was sufficiently described in the conveyance of the property and that, in line with the Law of Property Act 1925, section 78, the benefit could be annexed to every part of the land. Therefore the benefit ran with the land which was built upon and the plaintiff could enforce the covenant to restrict the building upon the land.

Question 28

Covenant must be negative for burden to pass.

How to have a negative burden? By doing nothing. Burdenee must not have put hand in pocket

Answer 28

Haywood v Brunswick Permanennt 1881

Question 29

Case establishing touch and concern as affecting nature, quality, mode of use or value of the covenantee’s land

Answer 29

P&A Swift v Combined English 1988
D guaranteed tat a lessee would perform the covenants in the lease. Original landlord wound up and transferred leasehold reversion? To claimant. Benefit not expressly transferred. When tenant failed to pay rent, claimant sought to enforce guarantee and make tenant pay for tenant breach

Question 30

A covenant that is mostly negative with a positive condition can be treated as wholly negative and vice versa

Answer 30

Powell v Hemsley 1909

Question 31

Language used must specifically concern annexation to the Landon to persons ==› express annexation is effective

Answer 31

Renals v Cowlishaw 1874-80

Question 32

Benefit passing in Common Law

Answer 32

+ BUT if 4 conditions are met

1 Touch concern land (not person)
Ex =› choose of colour could be problematic. (Personal not land specific)
2 At date of convenient, must be intent that benefit run w land
(express or implied s.78)
3 CEE must have owned land at date of COV (usu +)
4 Person must have derived title from original CEE (usu +)
before was issue with FH to LH even now not

Question 33

Section 78, unlike section 79, of the Law of Property Act 1925 annexes the benefit of a covenant even with a contrary intention

Answer 33

Roake v Chadha