Land - Freehold Covenants Flashcards
Structure
1) What type of covenant exists
2) Identify breaches and who can be sued
3) Who can sue
4) Has burden / benefit passed in equity?
5) if not, has burden / benefit passed in common law?
6) Remedies
Tulk v Moxhay
Burden pass - Equity
Generally burden will pass to successful covenantor if:
1) Covenant is negative in substance
2) Covenant must accommodate the dominant tenant
3) Original parties intended burden to pass
Haywood v Brunswick
Burden pass - equity
Covenant negative in substance:
Can be complied with by doing nothing (the “hand in pocket rule”)
Shepherd Homes v Sandham (No. 2)
If covenant is severed into two or more covenants, only the negative part passes
Powell v Hemsley
Burden pass - Equity
If covenant is mainly positive / negative with negative / positive condition, the substance of the covenant will be viewed on its main substance.
P&A Swift Investments v Combined English Stores
Covenant must “touch and concern” land affecting nature, quality, mode of use, value.
Bailey v Stephens
Burden pass - Equity
There must be sufficient proximity between dominant / servient land for burden to pass.
Renals v Cowlishaw
Benefit pass - Equity
Benefit will pass under Equity if covenantee became entitled to benefit under the following:
1) Annexation (Express / statutory (LPA s.78))
2) Assignment
3 Scheme of developement
Roake v Chadha
Benefit pass - equity
Statutory annexation can be expressly excluded.
Austerberry v Oldham
Burden pass - common law
Generally burden cannot pass under common law - s.79 LPA - Original covenantor remains liable.
Halsall v Brizell
Burden pass - common law
exception - mutual burden / benefit:
- Must both pass in the same transaction
- Benefit / burden must be connected
- Successor covenantor has choice to either take or reject the benefit / burden
