LAND Flashcards
exact meaning of a covenant may change over time
Dano v Earl CADOGAN 2003
Covennant: housing the working classes
Interpreted modern times as #those with suff. low incme that required inexpensive accommodation#
what does LPA 1925, s.56 state?
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
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
Re Ecclesiastical Commissioners 1936
Common law mischief and s.56 LPA
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)
Position after sale by ConvenantEE/Does Benefit pass to new owners?
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)
Test in P & A Swift on whether a convenant touches and concerns land
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
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)
seems not to confer benefit on land irself but a personal benefit ==> does not touch land => does not pass to new owners
How to determine if it was intention to have benefit run with land? Clause
The CovenantEE, his successors in title, and those deriving title under him BUT
now DEEMED IMPLIED AS Per LPA 1925 s.78(1)
Effect of Smith and SNipes Hall v River DOuglas 1949
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
Sale by Covenntator. Does burden pass to new owner?
Basic Rule Common Law No.
=> strict rule of contract
Austerberry v Corporation 1885
What is a fee simple?
??
Obligation to make up a road and keep it in good repair
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
Burdened land formed centre of Leicester Sqaure in london. COV would maintain the square as an ornamental open space
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
When will burden pass as under the Tulk v Moxhay doctrine?
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
1 Covenant COV must be negative
=> 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#
to keep the exterior of a hosue n repair
Positive burden => fails Tulk v Moxkay (mist be negative)
contribute one half of the cost of maintaining the driveway shared with land of covenantEE
Positive burden => fails Tulk v Moxkay (mist be negayive)
only such a covenant as can be complied with without expenditure of money will be enforced
Lindley LJ in Haywood v Brunswick Permanent Benefit 1881
COV: not to allow premies to fall into disrepair positive or negative COV?
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
Application of Equitable Principles.
==> General Equitable Principles will apply
==> Ex: He who comes to equity must come with clean hands
==>
Three rights of enforcement of covenant by purchaser of benefited land
1 By annexation
2 Express assignment of the benefit of the COV
3 Under special rules relating to building schemes
What did decison in Federated Homes v Mill Lodge 1980 do?
COVENANT was by D not to build more than a certain number of dwellings on burdened land.
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?
(Debatable)
Could be seen as personal to CovenantEE but what about fitting it with rest of street
Variant
Neon green
TO PAINT THE EXTERIOR PROPERTY EVERY 5 Y WITH TWO COATS OF GOOD QUALITY DARK BLUE PAINT Covenant
Has both positive and restrictive
==› can be severed out
Making someone paint is positive
Choice of colour is restrictive
Final condition of Tulk v Moxkay
What does TvM relate to?
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
Covenant to keep land in good repair was breached.
Whether burden could pass at common law
Austerberry v Oldham 1885
GR burden can’t pass at common law
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?
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.
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
Haywood v Brunswick Permanennt 1881
Case establishing touch and concern as affecting nature, quality, mode of use or value of the covenantee’s land
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
A covenant that is mostly negative with a positive condition can be treated as wholly negative and vice versa
Powell v Hemsley 1909
Language used must specifically concern annexation to the Landon to persons ==› express annexation is effective
Renals v Cowlishaw 1874-80
Benefit passing in Common Law
+ 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
Section 78, unlike section 79, of the Law of Property Act 1925 annexes the benefit of a covenant even with a contrary intention
Roake v Chadha
