Property Law Second Term - FREEHOLD COVENANTS Flashcards
What does Halsall v Brizell say about mutual benefit and burden?
You can receive the benefit if you take on the burden of the positive covenant
Newton Abbot v Wiliamson on requirement 1 of burden of negative FCs
Not use premises as ironmongers
Thames mead Town v Allotey requirements for mutual benefit and burden
Benefit is conditional on performing burden and you have a choice about whether to accept
To ensure the benefit of a FC always transmits, what might you need and according to what case?
Chain of assignment, Re Pinewood Estates
What case gives the requirements for a building scheme to allow the benefit of FCs to pass?
Reid v Bickerstaff
London County Council v Allen on requirement 3 of burden negative FCs
Need land adjacent to ST such that enforcing will benefit DT
What case can be contrasted with Newton Abbot to highlight the difference between easements and FCs?
Hill v Tupper –> only benefitted business, not land
What case gave the requirements for mutual benefit and burden?
Thames mead Town v Allotey
What case says that there needs to be a wider understanding of community interest for the benefit of an FC to pass in a building scheme?
Re Dolphin’s Conveyance
How can the difficulties of freehold covenants be avoided?
s.16 Commonhold and Leasehold Reform Act 2002
Tulk v Moxhay
Burden can transmit to successors of an ST, Leicester square
why have certain attempts to use s.79 LPA failed for burden of negative FCs?
Burden does not run if the covenant is personal
Jaggard v Sawyer on burden relating to land
Using land as a garden
S.78 cannot be excluded because allowance for contrary intention in s.79
Roake v Chadham
How can the benefit of an FC be annexed expressly?
Seller says at some point the benefit is to run with the land
Why would the outcome of London County Council v Allen be different now?
Local authorities can enforce covenants without dominant land, granted by statute
How can a positive covenant be protected?
Entry of notice (s.32 and s.33 LRA)
S.79(1) LPA
Burden of negative covenants deemed to run without contrary intention
Morrells Oxford v Oxford United requirement 2 burden negative FCs
‘Rebuttable presumption’ that covenants are intended to run
Refusing to pay to maintain and repair sewers
Thamesmead Town v Allotey
Need a deed to identify the relevant land for s.78 LPA
Cres Nicholson v McAllister
How can a covenant be created?
Signed writing (s.53(1) LPA) and signed contract (s.2LP(MP)A) or proprietary estoppel
How can you abolish a covenant?
Through s.84 LPA
Why is the 2nd requirement of mutual benefit and burden doubted?
In Halsall, no choice about sea wall
What is the statutory method of annexation for the benefit of an FC?
S.78(1) LPA
Why is there no freehold title in flats?
Burden of positive FC can’t be implied further than original owner
What does Jaggard v Sawyer give as the default remedy for freehold covenants?
Injunction
what is the contractual method for transmitting burden of positive FC?
Chain of indemnity through a contract
Re Dolphins Conveyance (building schemes, benefit of FCs)
Only need an understanding of wider community interest
How could a vendor use LRA to ensure burden of positive covenants passes upon salle?
S.40 LRA restriction to require purchaser to enter into a positive covenant as part of the purchase
Holiday homes
Wilkinson v Kerdene
Why was an injunction not given in Jaggard?
Too oppressive
Halsall v Brizell
Estate shared facilities
Roake v Chadham
Cannot be excluded because allowance for contrary intention in s.79
What is a possible contractual solution to the timing issue for benefits of FCs in building schemes?
S.56(1) LPA (need a deed) and s.1 C(RoTP)A
Cres Nicholson Residential v McAllister
Deed must describe land so it would be easily ascertainable for s.78(1)
What does s.84 LPA do?
Allows you to abolish a covenant
Newton Abbot v Williamson on requirement 3 burden negative GC
Upjohn thought no compete clause benefits owner and land - need to affect ‘either the value… or the method of its occupation’
What are the three requirements for the burden of a negative FC to run?
Relates to land, intended to run, dominant land capable of benefitting and negative covenant
In what report did the Law Com propose the introduction of ‘land obligations’ instead of positive/negative covenants
No.327
Federated Homes v Mill Lodge on s.78(1) LPA
Annexes all positive and negative benefits of FC
What is the effect on the LPA of Report No.327
If imposed, would need to amend s.1 LPA to make land obligations (positive and negative burden and benefit FC) legal interests.
S.78 annexes all positive and negative benefits of FC
Federated Homes v Mill Lodge
Federated Home v Mill Lodge on requirement 1 of burden of negative FCs
Not build more than X houses
In what case did the court make it clear they would not overturn a century of orthodoxy and all the burden of positive covenants to run?
Rhone v Stephens
Reid v Bickerstaff on building schemes and benefit of FCs
need a defined area of land and an intention that covenants are for the common benefit of all
Who highlighted identifying land to be benefitted for the purposes of s.78 LPA can be problematic?
Howell
Jaggard v Sawyer
Cul-de-sac covenant for garden
London County Council v Allen
Roadway
What are the three methods of transmitting the benefit of a covenant?
Assignment, annexation and building schemes
Who highlighted that Federated Homes’ interpretation of s.78 LPA is not at odds with s.79?
Snape
How does Re Dolphins Conveyance qualify the requirements given in Reid v Bickerstaff?
Reid said need an intention to benefit all - RDC says understanding of wider community interest
Reid v Bickerstaff on duties for benefit of FCs
Not required that all owners are subject to the same duties
Newton Abbot v Williamson
Devonia ironmongers
What are the three methods of transmitting the burden of a positive FC?
Contractual, estate rent charges or mutual benefit and burden
Rebuttable presumption for s.79 that the negative burden is intended to pass
Morrells Oxford v Oxford United
What case says that there is no need to register mutual benefit/burden as they do not create estates/interests in land?
Elwood v Goodman
What does Elwood v Goodman say about mutual benefit and burden and protection?
No need to register them - no do not create an estate/interest
What if the servient land of the negative covenant is unregistered (for registration)?
Use a Class D(iii) Land Charge
Wilkinson v Kerdene
Holiday cottage
What is the remedy for covenants are personal contactual obligations?
Can be enforced at law OR equity (claim in damages)
What is the argument about s.79(1) LPA and positive FC burden?
Doesn’t exclude burden of positive covenants being annexed
How did Wilkinson v Kerdene stretch requirement 1 of mutual benefit and burden?
stretched conditionality so you only need to receive part of the benefit to be liable for entire burden
How must a NEGATIVE freehold covenant be protected if STO is UNREGISTERED?
Class D(iii) Land Charge
When does a Class D(iii) Land Charge need to be used?
When the STO is unregistered for FC
Do FCs operate at law or equity?
EQUITY
