Lesson 4: Freehold Covenants Flashcards
What is a freehold covenant?
A freehold covenant is a promise made between freehold landowners that affects the land, either restricting or requiring action, such as paying something or carrying out certain duties.
Can a freehold covenant be a legal interest in land?
No, it is not a legal interest in land but can be an equitable interest.
What must be done for a freehold covenant to be enforceable?
The covenant must be in writing, signed by the party making the promise, as per section 53 of the Law of Property Act.
What is the role of the covenantor and the covenantee?
The covenantor is the party making the promise, and the covenantee is the party benefiting from the promise.
What happens when one party sells their land?
The enforceability of the covenant depends on whether the burden or benefit has passed to the new owner, governed by common law and equity.
What is the common law rule for the running of the burden of a covenant?
Under common law, covenants can’t pass to a successor in title.
What is the equity rule for the running of the burden of a covenant?
In equity, the burden can pass to a successor if the covenant is restrictive and certain other conditions are met.
Can a positive covenant pass to a new owner?
No, positive covenants cannot pass to a new owner.
How can a positive covenant be enforced after the original owner sells the land?
It can be enforced through methods like creating a lease, entering an indemnity covenant, or using the mutual benefit and burden rule.
What are building schemes in relation to covenants?
Building schemes are developments where reciprocal obligations, including positive covenants, can be imposed on all owners and passed on to new owners.
What is privity of contract in relation to covenants?
The original covenantor remains liable for the covenant for as long as it is in force, even after selling the land.
What must happen for the burden of a restrictive covenant to run with the land?
The covenant must be negative in nature, concern the dominant land, and the original parties must have intended for the burden to run.
How does notice play a role in the burden of a covenant?
The successor must have notice of the covenant, usually through registration.
What conditions must be satisfied for the benefit of a covenant to run at common law?
The covenant must touch and concern the land, both parties must hold the legal estate, and there must be an intention for the benefit to run.
Can the benefit of a covenant run in equity?
Yes, in equity, the benefit can run even if the parties do not hold the legal estate, provided the covenant touches and concerns the land and was intended to benefit the successor.
How can the benefit of a covenant be transferred?
The benefit can be expressly assigned or transferred to a new owner.
What is the rule about matching the benefit and burden in equity?
If suing under equity, the party must prove they have both the benefit and the burden of the covenant.
What are the remedies for breach of a covenant?
For positive covenants, damages are the remedy; for restrictive covenants, an injunction is the usual remedy.
How can a restrictive covenant be modified or discharged?
It can be modified through an express release, extinguished due to common ownership, discharged by the upper tribunal, or insured against potential breach.
What is a specific performance remedy?
Specific performance is a court order requiring the original covenantor to carry out their promise, typically used for positive covenants if they still own the land.
