NON-LEASEHOLD COVENANTS Flashcards
What is a freehold covenant a type of?
An incorporeal heriditment
What is meant by an incorporeal heriditment
An intangible right that can be inherited
What does a freehold covenant do?
Gives an owner of a plot of land rights over land owned by another
What is a positive covenant?
A promise that requires the covenantor to actively do something
What is a negative covenant?
A promise that requires the covenantor NOT to do something
What relevance does a deed have to covenants?
A covenant is a promise under deed, so the deed acts as a badge of affordability and as consideration for the original contract
Why did use of covenants increase in the 19th Century?
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
Can covenants be used as power?
Yes -> separation of social classes by creation of enclaves
How do covenants get round the principle of privity of contract?
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
Can the benefit of a covenant pass?
YES
s136 LPA 1925
-> Express assignment
What does s136 of the LPA 1925 state?
At contract law the benefit of a covenant can pass by being assigned to another in writing
Which sections of the LPA state the benefit of a covenant can pass at common law?
s136 and s56
What does s56 of the LPA state?
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
What is required of a third party under s56 LPA for them to receive the benefit of a covenant?
They must be named in the contract
They must exist at the time the contract is made
What Act has largely superseded s136 and s56 LPA?
Contract (Rights of Third Parties) Act 1999
-> Only applies AFTER May 2000
Can the burden of a covenant pass?
Not at Common Law
CASE FACTS
TULK v MOXHAY 1848
- 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
What was the question for the judges in TULK v MOXHAY 1848?
Had the burden of the covenant passed with the land or had M successfully bought himself out of them by paying £120 damages?
Which is the pivotal case in whether burden of covenants passes with land?
TULK v MOXHAY 1948
What was the judgement in TULK v MOXHAY?
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
Which type of covenants have restrictions on positive covenants?
Freehold
What must be established to enforce a covenant as a proprietary right?
1) Covenantor’s land carried burden
2) Covenantee’s land carries the benefit
3) They both run with the land
How does enforcement between original parties differ from successors?
Between original parties the right is purely contractual, land is not necessary
Which case demonstrates implied assignment under s56 LPA 1925?
P & A SWIFT INVESTMENTS
‘touches and concerns the land’
-> Then covenant passes and successors get legal title to the promise
If the covenant benefits the land is it automatically considered to pass?
YES
Unless expressly stated otherwise
How else can a covenant part except express/implied assignment?
Express or statutory ANNEXATION
What is meant by annexation of a covenant?
Stating that the covenant has become part of the land
Where is the law for statutory annexation?
s78 LPA
-> Word saving device as pre 1980 it was not automatically assumed benefit passed
Which case decided that if a covenant benefits the land it automatically passes by statutory annexation?
FEDERATED HOMES 1980
Which case decided that if a covenant benefits the land it automatically passes by express annexation?
ROGERS v HOSEGOOD
How can the automatic assumption a beneficial covenant passes be excluded?
Contrary intention
ROAKE v CHADA
FEDERATED HOMES 1980
If a covenant benefits the land it automatically passes by statutory annexation
ROGERS v HOSEGOOD
If a covenant benefits the land it automatically passes by express annexation
ROAKE v CHADA
Automatic assumption a beneficial covenant passes be excluded by expressed contrary intention
SMITHS & SWIPES HALL 1949
CASE FACTS
- Board agreed with landowner to maintain riverbanks, no land to be burdened so was only a contractual agreement
- Successor sued when the river burst
Issue in SMITHS v SWIPES HALL 1949?
Whether or not the covenant had passed
Judgement in SMITHS v SWIPES HALL 1949
- 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
What does RHONE v STEPHENS say about burden of freehold covenants?
It cannot pass
‘Equity cannot compel an owner to comply with a positive covenant entered into by his predecessors’
Which case states ‘Equity cannot compel an owner to comply with a positive covenant entered into by his predecessors’?
RHONE v STEPHENS
In which 2 ways can a positive covenant be indirectly enforced?
1) A chain of indemnity
2) HALSALL v BRIZELL principle
What is a chain of indemnity?
A chain of promises, every time the land is sold a new promise is made to uphold the covenant
UNRELIABLE
What is the HALSALL v BRIZELL principle?
- 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
What type of rights are a chain of indemnity and the H v B principle?
Personal NOT proprietary
Can the burden pass in equity?
Yes
What is the case for the burden passing in equity?
TULK v MOXHAY 1848
What are the 4 requirements for a burden to pass in equity?
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
Where is the law for notice of a covenant found if land is registered?
s32 LRA 2002
Where is the law for notice of a covenant found if land is unregistered?
s2 class d(ii) LCA 1972
Remedies for breach of a covenant?
COMMON LAW = damages
EQUITY = injunction
Can covenants be removed?
Yes. s84 LPA
What is s2 class d(ii) LCA 1972?
Law for notice of a covenant found if land is unregistered
What is s32 LRA 2002?
Law for notice of a covenant found if land is registered
What is s84 LPA?
Removal of covenants
How is a covenant removed by s84?
Application to the land tribunal if it’s:
- Obsolete
- Obstructs reasonable use
- Pubic benefit
- Permission of dominant tenement
