🌾Land: Freehold covs, leases Flashcards
What is a freehold covenant
promises expressly made between neighbouring freehold owners.
Who is the covenanter/covenantee
Covenantor-The person who makes the promise, land in respect of which it is made has the burden of the covenant.
Covenantee-The person to whom the promise is made, and that person’s land is said to have the benefit of the covenant.
What is annexation of a freehold covenant?
denotes that the benefit of a covenant is attached to the land of the covenantee so that it passes automatically to successors of the covenantee.
What is assignment of a freehold covenant?
The express transfer of the benefit of a covenant to a successor
What type of right/why?
Not capable of being legal (not listed in s1(2) LPA 1925
Can therefore only be equitable
Formalities for creation?
Signed writing but deed best
Positive/restrictive cov differences?
Positive=requires some effort or expenditure to perform obligation
Restrictive-requires no such effort or expense
Enforceability of freehold covs in unregistered land
Register as Class D(ii) Land charge before date of completion
Pre 1926-enforceable against anyone but equities darling
Enforceability of freehold covs in registered land
Is an IARE-notice on charges register by date of transfer to buyer
Freehold covs: enforceability by original parties?
Both bound by privity of contract Original covenantee=can enforce benefit against anyone with burden UNLESS parted with all the land for the benefit of which the covenant was taken.
Original covenantor=Liable throughout lease for all covs (EXCEPT personal) no matter who breaches
Freehold covs: who are they deemed made on behalf of
deemed to be made by the covenantor on behalf of their successors in title and persons deriving title under them UNLESS the deed contains a statement to the contrary.
Freehold covs: passing of burden of positive covs
At common law: no
In equity: no
Freehold covs: can the burden of a positive cov be made enforceable?
- Lease instead of selling
- Indemnity cov from buyer
- Doctrine of mutual benefit and burden
Freehold covs: where will an indemnity cov be noted?
In charges register
Freehold covs: 3 issues with indemnity covenants?
- If chain is broken
- If middle chain doesn’t exist/goes into liquidation/cant be found
- Owner doesn’t have sufficient money to pay damages
Freehold covs: what is the doctrine of mutual benefit and burden in Halsall v Brizell?
If take benefit of right, must take burdens in same deed.
Burden must be related to exercise of benefit
Successors must have been able to choose to take benefit
Freehold covs: passing of the burden of restrictive covs?
At common law: NO
In equity: YES if conditions in Tulk v Moxhay apply:
1. Cov restrictive
2. For benefit of Dom land RETAINED by covenantee
3. Touches and concerns land
4. Parties intended burden to run with land (Express in creating doc OR implied for post 1925 covs unless contrary in deed)
5. Servient owner has notice
Freehold covenants: When will a covenant touch and concern the land?
Swift investment test
1. Covenant would cease to benefit owner if it was separated from the land
2. Covenant affects the nature, quality, mode of user or value of the land
3. Covenant not expressed to be personal
Freehold covenants: Passing of benefit at common law
YES by-
a. Assignment
▪ Must occur at same time as transfer of land
▪ signed writing (by assignor)
▪ Written notice of assignment given to person with burden
b. OR Annexation
1. Cov touches and concerns land
2. Original covenantee and buyer have legal estate in land
3. Intention that the benefit should run
ie. Express words
OR implied by s78 LPA
Freehold covenants: Passing of benefit in equity
YES, by -
a. Assignment
▪ Occurs at same time as transfer of the land
▪ signed writing (by assignor)
▪ Written notice of assignment given to person with burden
b. OR Annexation
Express-in deed
Implied-where obviously intended
Statutory under s78
1. Cov created after 1925
2. cov must touch and concern land
3. Land must be easily identifiable from plan/description/other reference in transfer
Freehold covenants: what wording in a deed shows express annexation of a freehold covenant
‘the owners or owner for the time being of [named land]’, or by stating that the covenant is taken ‘for the benefit of [named land]’.
Freehold covenants: what is a third way the benefit can pass in equity?
Building schemes:
- Defined area w/ 1 owner
- Estate laid out in lots subject to restrictions intended to be imposed on all lots
- Owner intends restrictions to apply to all lots of land sold
- Original buyers bought their lots on the basis that the restrictions would benefit all of the lots in the scheme.
Freehold covenants: Remedies for breach of positive covenant
○ Damages for loss, inc sum for future loss (against original covenantor; or successor)
○ Specific performance (breach by original covenantor)
Freehold covenants: remedies for breach of restrictive covenant
- Injunction (for existing or anticipated breach) (equitable so discretionary)
-
Damages in lieu of injunction where:
* injury small
* capable of being estimated in money
* adequate to compensate in money
* opressive to grant injunction
Freehold covenants: 4 ways they can be discharged
- Express release: are modification/release with covenantee via deed BUT will sometimes seek payment
- Common ownership
- Apply to Lands Chamber of Upper Tribunal under S84 LPA 1925 for release/modification
- Breach insurance
Leases: capable of being legal?
Yes
Leases: formalities for creation
Over 3y: Deed
3y or less: Parol lease exception
Equity may intervene where:
a. There’s a contract to create or transfer a legal estate
-contract
-complying with s 2 LPMPA 1989
-specific performance available clean hands (person seeking not in breach)
b.Attempt to use a deed but its not valid
-a contract
-complying with s 2 LPMPA
-clean hands
Essential characteristics of a lease
- Exclusive possession
- Certainty of duration (definite term)
- Correct formalities
Leases: what is exclusive possession?
The ability to the tenant to exercise control over the land, meaning they exclude all (inc. landlord) from land and they need not be in occupation
Leases: when will a flat share amount to exclusive possession?
will be lease if signed on identical terms at same time
Leases: when will there be no lease despite occupier having exclusive possession
- parties clearly dont intend to enter legal relationship
2.occupation required in connection with service/duties from tenant to ll (eg.employment/holdingan office) - Relationship between the parties is that of vendor and purchaser and occupancy takes place under a contract for the sale of the land;
- Owner has no power to grant a tenancy.
Leases: what is certainty of duration
Must have a fixed and ascertainable period (definable beginning and end)
Leases: what is the effect of attempting to to create a lease for life of tenant?
reates a 90- year lease, ending either on the death of the tenant, or as provided in the agreement itself
Leases: does a break clause prevent there being certainty of duration?
No if the term is fixed
Is rent essential for a lease?
Not essential but supports view parties intended fomal landlord-tenant relationship
What is created if there is an essential characteristic of a lease missing?
Licence-a personal right that wont bind successor and cant be assigned
Can a licensee in occupation benefit from statutory protection?
No
Yes of lease
Fixed term: contract giving tenant right to occupy premises for certain fixed period of time
Periodic: Where lease runs from period to period, renewing automatically at end of each period until terminated by notice to quit by either party (=doesn’t offend the rule as to certainty of duration. Where haven’t agreed to fixed term, regular payment of rent will give rise to periodic tenancy.
Leases: what landlord covenants are implied in absence of express obligation
Quiet enjoyment: Tenants lawful possession of land wont be substantially interfered with by acts of landlord.
Repair: Where no express repairing obligation, landlords must keep in repair:
-structure/exterior of dwelling house
-supply of water, gas, electricity, sanitation
- installations for space heating and heating water.
HOWEVER landlord only liable if theres disrepair that’s been notified to them
