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PROPERTY > NON-LEASEHOLD COVENANTS > Flashcards

NON-LEASEHOLD COVENANTS Flashcards

1
Q

What is a freehold covenant a type of?

A

An incorporeal heriditment

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2
Q

What is meant by an incorporeal heriditment

A

An intangible right that can be inherited

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3
Q

What does a freehold covenant do?

A

Gives an owner of a plot of land rights over land owned by another

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4
Q

What is a positive covenant?

A

A promise that requires the covenantor to actively do something

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5
Q

What is a negative covenant?

A

A promise that requires the covenantor NOT to do something

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6
Q

What relevance does a deed have to covenants?

A

A covenant is a promise under deed, so the deed acts as a badge of affordability and as consideration for the original contract

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7
Q

Why did use of covenants increase in the 19th Century?

A

Rise of middle classes, more people had property rights
Acted as form of planning permission before central planning body -> prevented slums being built next to fancy houses.
Russell Square is an example

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8
Q

Can covenants be used as power?

A

Yes -> separation of social classes by creation of enclaves

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9
Q

How do covenants get round the principle of privity of contract?

A

Privity of contract means the rights are only enforceable in personam
By converting it to a property right, the covenant ‘sticks’ to the land so it can last through owners

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10
Q

Can the benefit of a covenant pass?

A

YES
s136 LPA 1925
-> Express assignment

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11
Q

What does s136 of the LPA 1925 state?

A

At contract law the benefit of a covenant can pass by being assigned to another in writing

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12
Q

Which sections of the LPA state the benefit of a covenant can pass at common law?

A

s136 and s56

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13
Q

What does s56 of the LPA state?

A

Implied assignment
That the contract of the covenant can ‘be made with a third party’ who become part of the bi-lateral agreement by being named

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14
Q

What is required of a third party under s56 LPA for them to receive the benefit of a covenant?

A

They must be named in the contract

They must exist at the time the contract is made

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15
Q

What Act has largely superseded s136 and s56 LPA?

A

Contract (Rights of Third Parties) Act 1999

-> Only applies AFTER May 2000

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16
Q

Can the burden of a covenant pass?

A

Not at Common Law

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17
Q

CASE FACTS

TULK v MOXHAY 1848

A
  • 1807 T given Leicester Square gardens and surrounding property by his dad
  • Covenanted with his dad that he would ‘at all times hereafter keep the piece or parcel of ground in LS currently used as a garden, in its present form’
  • 1808 sold gardens to ELMS, who left it to BARREN, who sold it to UNDERWICK
  • Still subject to covenants
  • Went to auction, bought by HYAMS who assigned his interest to MOXHAY (a builder)
  • Still subject to covenants and M paid £120 to release himself from them as he thought they were just contractual and he was paying damages for violating it
  • Started building
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18
Q

What was the question for the judges in TULK v MOXHAY 1848?

A

Had the burden of the covenant passed with the land or had M successfully bought himself out of them by paying £120 damages?

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19
Q

Which is the pivotal case in whether burden of covenants passes with land?

A

TULK v MOXHAY 1948

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20
Q

What was the judgement in TULK v MOXHAY?

A

Covenants passed with the land or ‘it would be impossible for an owner of land to sell part of it without risk of rendering the rest worthless’

  • > If you buy land cheap as it has covenants attached, it is inequitable for you to use it as if it were free of them
  • > Nemo dat rule
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21
Q

Which type of covenants have restrictions on positive covenants?

A

Freehold

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22
Q

What must be established to enforce a covenant as a proprietary right?

A

1) Covenantor’s land carried burden
2) Covenantee’s land carries the benefit
3) They both run with the land

23
Q

How does enforcement between original parties differ from successors?

A

Between original parties the right is purely contractual, land is not necessary

24
Q

Which case demonstrates implied assignment under s56 LPA 1925?

A

P & A SWIFT INVESTMENTS
‘touches and concerns the land’
-> Then covenant passes and successors get legal title to the promise

25
Q

If the covenant benefits the land is it automatically considered to pass?

A

YES

Unless expressly stated otherwise

26
Q

How else can a covenant part except express/implied assignment?

A

Express or statutory ANNEXATION

27
Q

What is meant by annexation of a covenant?

A

Stating that the covenant has become part of the land

28
Q

Where is the law for statutory annexation?

A

s78 LPA

-> Word saving device as pre 1980 it was not automatically assumed benefit passed

29
Q

Which case decided that if a covenant benefits the land it automatically passes by statutory annexation?

A

FEDERATED HOMES 1980

30
Q

Which case decided that if a covenant benefits the land it automatically passes by express annexation?

A

ROGERS v HOSEGOOD

31
Q

How can the automatic assumption a beneficial covenant passes be excluded?

A

Contrary intention

ROAKE v CHADA

32
Q

FEDERATED HOMES 1980

A

If a covenant benefits the land it automatically passes by statutory annexation

33
Q

ROGERS v HOSEGOOD

A

If a covenant benefits the land it automatically passes by express annexation

34
Q

ROAKE v CHADA

A

Automatic assumption a beneficial covenant passes be excluded by expressed contrary intention

35
Q

SMITHS & SWIPES HALL 1949

CASE FACTS

A
  • Board agreed with landowner to maintain riverbanks, no land to be burdened so was only a contractual agreement
  • Successor sued when the river burst
36
Q

Issue in SMITHS v SWIPES HALL 1949?

A

Whether or not the covenant had passed

37
Q

Judgement in SMITHS v SWIPES HALL 1949

A
  • Held to run with the land as it had been statutorily annexed under s78 because it ‘touched and concerned the land’
  • Arguable that s79 could be applied in the same way so the burden can also pass

DENNING (dissenting) thought it was a s56 matter and had been implied

38
Q

What does RHONE v STEPHENS say about burden of freehold covenants?

A

It cannot pass

‘Equity cannot compel an owner to comply with a positive covenant entered into by his predecessors’

39
Q

Which case states ‘Equity cannot compel an owner to comply with a positive covenant entered into by his predecessors’?

A

RHONE v STEPHENS

40
Q

In which 2 ways can a positive covenant be indirectly enforced?

A

1) A chain of indemnity

2) HALSALL v BRIZELL principle

41
Q

What is a chain of indemnity?

A

A chain of promises, every time the land is sold a new promise is made to uphold the covenant
UNRELIABLE

42
Q

What is the HALSALL v BRIZELL principle?

A
  • A covenants with B to pay towards upkeep of shared drive
  • If A wants benefit they must take share of burden
  • B can be granted an injunction to prevent A using it if they won’t pay
43
Q

What type of rights are a chain of indemnity and the H v B principle?

A

Personal NOT proprietary

44
Q

Can the burden pass in equity?

A

Yes

45
Q

What is the case for the burden passing in equity?

A

TULK v MOXHAY 1848

46
Q

What are the 4 requirements for a burden to pass in equity?

A

1) Must be negative
2) Must benefit dominant tenement that is identifiable and proximate
3) Must be intended to pass
4) Successor must have notice in writing

47
Q

Where is the law for notice of a covenant found if land is registered?

A

s32 LRA 2002

48
Q

Where is the law for notice of a covenant found if land is unregistered?

A

s2 class d(ii) LCA 1972

49
Q

Remedies for breach of a covenant?

A

COMMON LAW = damages

EQUITY = injunction

50
Q

Can covenants be removed?

A

Yes. s84 LPA

51
Q

What is s2 class d(ii) LCA 1972?

A

Law for notice of a covenant found if land is unregistered

52
Q

What is s32 LRA 2002?

A

Law for notice of a covenant found if land is registered

53
Q

What is s84 LPA?

A

Removal of covenants

54
Q

How is a covenant removed by s84?

A

Application to the land tribunal if it’s:

  • Obsolete
  • Obstructs reasonable use
  • Pubic benefit
  • Permission of dominant tenement

PROPERTY (5 decks)

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