Land Law: Covenants

Question 1

Are covenants legal or equitable?

Answer 1

Equitable under s1(3) LPA 1925.

Question 2

What are the four types of covenants?

Answer 2

Positive and restrictive

Real and personal

Question 3

Do positive covenants run with the land?

Answer 3

Usually no, unless there is a mutual benefit and burden - Halsall v Brisell [1957], or there is a chain of indemnity covenants.

Question 4

Under common law, how does the benefit of a freehold covenant pass?

Answer 4

• 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)

Question 5

Under equity, when does the benefit of a freehold covenant pass?

Answer 5

• If the covenant is real

- if it is expressly assigned or annexed under s78 LPA 1925 (authority: Federated Homes v Mill Lodge Properties)

Question 6

Under common law, how does the burden of a freehold covenant pass?

Answer 6

It does not under Austerberry v Corportation of Oldham [1980].

Question 7

Under equity, when does the burden of a covenant pass?

Answer 7

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

Question 8

What are the remedies for breach of restrictive freehold covenants?

Answer 8

• Damages

- Injunction to retain a breach

Question 9

What are the remedies for breach of positive freehold covenants?

Answer 9

• Specific performance

Question 10

What are the methods of discharge of freehold covenants?

Answer 10

• Express release
• Common ownership
• Court proceedings under s84 LPA 1925

Question 11

Which act governs the new rules for leasehold covenants?

Answer 11

Landlords and Tenants (Covenants) Act 1995

Question 12

When was the LT(C)A 1995 enforced?

Answer 12

1st January 1996

Question 13

Under the old rules of leasehold covenants the original parties are liable…

Answer 13

… for the duration of the entire lease.

Question 14

Under the old rules for leasehold covenants, the burden of the tenants covenants and the benefit of the landlords covenants pass to the…

Answer 14

incoming tenant under Spencers Case [1583] if the covenant is real

Question 15

Under the old rules for leasehold covenants, the burden of the landlords covenants and the benefit of the tenants covenants pass to the…

Answer 15

incoming landlord under s141 and s142 if the covenant have reference to the subject matter of the lease.

Question 16

Where is the definition of touches and concerns’? What does it mean?

Answer 16

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.

Question 17

Under the new rules, the burden of the tenants covenants passes to the incoming tenant under…

Answer 17

s3(2)(a) LT(C)A 1995

Question 18

Under the new rules, the benefit of the landlords covenants passes to the incoming tenant under…

Answer 18

s3(2)(b) LT(C)A 1995

Question 19

Under the new rules, the burden/benefit will pass unless…

Answer 19

Expressed to be personal - s3(6) LT(C)A 1995

Question 20

Under the new rules, the benefit of the tenants covenant passes to the incoming landlord under…

Answer 20

s3(3)(b) LT(C)A 1995

Question 21

Under the new rules, the burden of the landlords covenant passes to the incoming landlord under…

Answer 21

s3(3)(a) LT(C)A 1995

Question 22

What are the mitigating conditions under LT(C)A 1995?

Answer 22

• Applies to commercial premises only

- s16 LT(C)A 1995 allows landlords to create AGAs where the original tenant guarantees their successors.

Question 23

What are the remedies for breach of leasehold covenant(non-payment of rent)?

Answer 23

• Sue for debt
• Commercial rent arrears recovery
• Forfeiture
• Sue original/former tenant for debt (s17 notice)

Question 24

What are the remedies for breach of leasehold covenant (other covenants)?

Answer 24

• Damages from current tenants
• Specific performance/injunction
• Self-help in the lease itself
• Forfeiture
• Damages from original/former tenant

Question 25

What remedies are available to the tenant for breach of leasehold covenant?

Answer 25

• Damages
• Self help (Lee parker v Izzet [1971])
• Specific performance