Passing the benefit at common law

Question 1

The modern authority for the benefit passing at common law

Answer 1

Smith and Snipes Hall Farm v River Douglas Catchment Board

Question 2

Facts of Snipe and Smith

Answer 2

A drainage authority covenanted with the freehold owners of land subject to flooding to repair and maintain flood prevention works. The case involved an action for damages by the covenantee’s assignee and his yearly tenant. They successfully enforced the covenant.

Question 3

What are the requirements

Answer 3

1) Must touch and concern the covenantee’s land
2 and 3) the covantee and the assignee must have a legal estate
4) the benefit must be intended to run with the land at the time and in the future
5) The land benefitted must be identifiable
6) Issue of subdivision

Question 4

What is the first question

Answer 4

Must touch and concern the covenantee’s land

Question 5

Case for touching and concerning

Answer 5

PA Swift Investment v Combined English Food stores

Question 6

test in PA Swift Investment v Combined English Food stores

Answer 6

“(1) The covenant benefits only the [landowner] for the time being, and if separated from the [land] ceases to be of benefit to the covenantee. (2) The covenant affects the nature, quality, mode of user or value of the land … (3) The covenant is not expressed to be personal …”

Question 7

Examples of touching and concerning

Answer 7

A convent that restricts the use of neighbouring land e.g. a covenant preventing neighbouring land being used for businesses purposes. This benefits, touches and concerns the land in question, because if what is residential property next door is turned into a business, more traffic, noise, people.

Question 8

What will not touch and concern

Answer 8

Where purely personal this will not touch and concern the covenatee’s land. E.g. Preventing consumption of alcohol in residential property, difficult to see how that will affect neighbouring land. It is personal to the covenantee. Does not affect value of his land.

Question 9

Did Smith and Snipes T and C

Answer 9

In Smith, covenant to protect flooding to allow agricultural use of land. This affected land, nature and use, so touched and concerned.

Question 10

Second and third question

Answer 10

Must have a legal estate
Must have a legal estate but need not be the same as the covenantee S 78(1) LPA e.g. ub Smith and Snipes fee simple could also be enforced by the purchaser of the fee simple but also the tenant

Question 11

Fourth question

Answer 11

The benefit must have been intended to run with the land.

Question 12

Authority for intending to run

Answer 12

Section 78(1) LPA 1925 
A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them, and shall have effect as if such successors and other persons were expressed.

Question 13

Why has s 78 been criticised?

Answer 13

Has been criticised because how can statutory words read into a deed words that show the intention of the parties? However it is a well-established rule

Question 14

5th Question

Answer 14

The land to be benefited must be identified.The land can be identified in the deed. However, the courts will make use of intrinsic evidence. However, intrinsic eveidnece can be problematic in the future. What if the evidence is relevant but 100 years later you do not know what the evidence was, how can you be sure what land was intended to be benefited?

Question 15

What is the last question

Answer 15

Is subdivision fatal

Question 16

Case that suggests that sub division will be fatal

Answer 16

Miles v Easter

Question 17

Which case first related

Answer 17

Federated Homes Ltd v Mill Lodge Properties Ltd:

Question 18

problem with federate homes

Answer 18

deals with passing of benefit in equity. But it was expressed that where a covenant is to benefit a plot of land it should be seen as not only as benefiting the whole of that land, but as benefiting each and every part of that land. If anyone owns a part of the covenantee’s land and can show their land in fact benefits, then they ought to be able to enforce the covenant.

Question 19

Where was federate homes applied

Answer 19

Byrant Homes Southern Inc v Stein Management; The judge applied the dicta from Federated Homes. The problem in the judgement was that is was not clear whether the judge was applying common law rules or equitable rules for the passing of the benefit. The judge referred to some of the requirements at law, and some of the requirements in equity. suggests that it doesn’t matter when it comes to subdivision and touching and concerning, the answer is the same when talking about legal and equitable rules.