Land - Freehold Covenants

Question 1

Who can sue for breach of a freehold covenant?

Answer 1

(Current owner of the benefit) can consider suing either X as oringinal covenantor or Y as successor covenantor. To sue, the claimant must have the benefit of the covenant. To sue Y, the burden must have passed.

Question 2

In what two ways can the benefit of a covenant pass at common law?

Answer 2

1- By express assignment under s136 LPA

2- Automatically if a number of conditions are met

Question 3

What conditions must be met for the benefit of a covenant to pass at common law?

Answer 3

1- Covenant must ‘touch and concern’ land (PA Swift Investments)
2- The original covenantee and successor in title must own/ have owned the legal estate
3- The original parties must have intended the benefit to run

Question 4

What is meant by ‘touch and concern’?

Answer 4

PA Swift Investments:
1- Covenant affects the nature/ quality/ mode of use/ value of the land
2- Only benefits the covenantee as long as they own the land
3- Not expressed as a personal right

Question 5

In what two ways can the benefit be shown to have been intended to run?

Answer 5

Express annexation (s.136 LPA)
Statutory Annexation (s.79 LPA)

Question 6

The burden of a covenant will not generally pass to the successor in title under common law

Answer 6

Austerberry v Oldham Corp.

Question 7

Why will the burden of a covenant generally not pass to the successor in title under common law?

Answer 7

Privity of contract- the burden stays with the original covenantor

Question 8

How could the original covenantor avoid having to pay for a successor’s breach?

Answer 8

Indemnity chain

Question 9

What conditions need to be met for the benefit of a covenant to pass to a successor in title under equity?

Answer 9

1- Touch and concern land

2- Express assignment (s.136 LPA)/ Express annexation/ Statutory annexation (Federated Homes)

Question 10

What conditions need to be met for the burden of a covenant to pass at equity? (+ Authority)

Answer 10

Tulk v Moxhay:
1- Covenant is RESTRICTIVE 
2- Touches and concerns land 
3- express/ statutory annexation 
4- Correctly registered (IARE/ Class D(ii))

Question 11

What remedies are available for breach of a restrictive covenant?

Answer 11

1- Damages
2- Injuction/ Specific performance
3- Damages in lieu

Question 12

What remedies are available for breach of a possitive covenant?

Answer 12

1- Damages

2- Threat of indemnity chain

Question 13

In what 3 ways can a covenant be discharged?

Answer 13

1- Agreement in a deed
2- Common ownership
3- s.84 LPA (application to lands tribunal)