Land Law: Covenants Flashcards
Are covenants legal or equitable?
Equitable under s1(3) LPA 1925.
What are the four types of covenants?
Positive and restrictive
Real and personal
Do positive covenants run with the land?
Usually no, unless there is a mutual benefit and burden - Halsall v Brisell [1957], or there is a chain of indemnity covenants.
Under common law, how does the benefit of a freehold covenant pass?
- By express assignment: s136 LPA 1925
- Automatically as long as it is real, the owners have a legal estate in the land, and the benefit was intended to run (s78 LPA 1925)
Under equity, when does the benefit of a freehold covenant pass?
- If the covenant is real
- if it is expressly assigned or annexed under s78 LPA 1925 (authority: Federated Homes v Mill Lodge Properties)
Under common law, how does the burden of a freehold covenant pass?
It does not under Austerberry v Corportation of Oldham [1980].
Under equity, when does the burden of a covenant pass?
Tulk v Moxhay [1848]:
- covenant must be restrictive
- covenant must be real
- it is intended to run (s78 LPA 1925) either expressly or implied
- the successor has notice of the covenant
What are the remedies for breach of restrictive freehold covenants?
- Damages
- Injunction to retain a breach
What are the remedies for breach of positive freehold covenants?
- Specific performance
What are the methods of discharge of freehold covenants?
- Express release
- Common ownership
- Court proceedings under s84 LPA 1925
Which act governs the new rules for leasehold covenants?
Landlords and Tenants (Covenants) Act 1995
When was the LT(C)A 1995 enforced?
1st January 1996
Under the old rules of leasehold covenants the original parties are liable…
… for the duration of the entire lease.
Under the old rules for leasehold covenants, the burden of the tenants covenants and the benefit of the landlords covenants pass to the…
incoming tenant under Spencers Case [1583] if the covenant is real
Under the old rules for leasehold covenants, the burden of the landlords covenants and the benefit of the tenants covenants pass to the…
incoming landlord under s141 and s142 if the covenant have reference to the subject matter of the lease.
Where is the definition of touches and concerns’? What does it mean?
P&A Swift Investments v Combined English Stores Group [1989]
It means the covenant must effect the way the land is used or effect the value of the land.
This checks if the covenant is real, not personal.
Under the new rules, the burden of the tenants covenants passes to the incoming tenant under…
s3(2)(a) LT(C)A 1995
Under the new rules, the benefit of the landlords covenants passes to the incoming tenant under…
s3(2)(b) LT(C)A 1995
Under the new rules, the burden/benefit will pass unless…
Expressed to be personal - s3(6) LT(C)A 1995
Under the new rules, the benefit of the tenants covenant passes to the incoming landlord under…
s3(3)(b) LT(C)A 1995
Under the new rules, the burden of the landlords covenant passes to the incoming landlord under…
s3(3)(a) LT(C)A 1995
What are the mitigating conditions under LT(C)A 1995?
- Applies to commercial premises only
- s16 LT(C)A 1995 allows landlords to create AGAs where the original tenant guarantees their successors.
What are the remedies for breach of leasehold covenant(non-payment of rent)?
- Sue for debt
- Commercial rent arrears recovery
- Forfeiture
- Sue original/former tenant for debt (s17 notice)
What are the remedies for breach of leasehold covenant (other covenants)?
- Damages from current tenants
- Specific performance/injunction
- Self-help in the lease itself
- Forfeiture
- Damages from original/former tenant
