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Law First Year > Property Law Second Term - FREEHOLD COVENANTS > Flashcards

Property Law Second Term - FREEHOLD COVENANTS Flashcards

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1
Q

What does Halsall v Brizell say about mutual benefit and burden?

A

You can receive the benefit if you take on the burden of the positive covenant

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2
Q

Newton Abbot v Wiliamson on requirement 1 of burden of negative FCs

A

Not use premises as ironmongers

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2
Q

Thames mead Town v Allotey requirements for mutual benefit and burden

A

Benefit is conditional on performing burden and you have a choice about whether to accept

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3
Q

To ensure the benefit of a FC always transmits, what might you need and according to what case?

A

Chain of assignment, Re Pinewood Estates

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3
Q

What case gives the requirements for a building scheme to allow the benefit of FCs to pass?

A

Reid v Bickerstaff

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4
Q

London County Council v Allen on requirement 3 of burden negative FCs

A

Need land adjacent to ST such that enforcing will benefit DT

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4
Q

What case can be contrasted with Newton Abbot to highlight the difference between easements and FCs?

A

Hill v Tupper –> only benefitted business, not land

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4
Q

What case gave the requirements for mutual benefit and burden?

A

Thames mead Town v Allotey

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4
Q

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?

A

Re Dolphin’s Conveyance

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5
Q

How can the difficulties of freehold covenants be avoided?

A

s.16 Commonhold and Leasehold Reform Act 2002

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6
Q

Tulk v Moxhay

A

Burden can transmit to successors of an ST, Leicester square

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7
Q

why have certain attempts to use s.79 LPA failed for burden of negative FCs?

A

Burden does not run if the covenant is personal

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7
Q

Jaggard v Sawyer on burden relating to land

A

Using land as a garden

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7
Q

S.78 cannot be excluded because allowance for contrary intention in s.79

A

Roake v Chadham

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9
Q

How can the benefit of an FC be annexed expressly?

A

Seller says at some point the benefit is to run with the land

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9
Q

Why would the outcome of London County Council v Allen be different now?

A

Local authorities can enforce covenants without dominant land, granted by statute

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9
Q

How can a positive covenant be protected?

A

Entry of notice (s.32 and s.33 LRA)

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10
Q

S.79(1) LPA

A

Burden of negative covenants deemed to run without contrary intention

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11
Q

Morrells Oxford v Oxford United requirement 2 burden negative FCs

A

‘Rebuttable presumption’ that covenants are intended to run

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11
Q

Refusing to pay to maintain and repair sewers

A

Thamesmead Town v Allotey

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12
Q

Need a deed to identify the relevant land for s.78 LPA

A

Cres Nicholson v McAllister

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13
Q

How can a covenant be created?

A

Signed writing (s.53(1) LPA) and signed contract (s.2LP(MP)A) or proprietary estoppel

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13
Q

How can you abolish a covenant?

A

Through s.84 LPA

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14
Q

Why is the 2nd requirement of mutual benefit and burden doubted?

A

In Halsall, no choice about sea wall

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16
Q

What is the statutory method of annexation for the benefit of an FC?

A

S.78(1) LPA

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16
Q

Why is there no freehold title in flats?

A

Burden of positive FC can’t be implied further than original owner

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18
Q

What does Jaggard v Sawyer give as the default remedy for freehold covenants?

A

Injunction

19
Q

what is the contractual method for transmitting burden of positive FC?

A

Chain of indemnity through a contract

21
Q

Re Dolphins Conveyance (building schemes, benefit of FCs)

A

Only need an understanding of wider community interest

22
Q

How could a vendor use LRA to ensure burden of positive covenants passes upon salle?

A

S.40 LRA restriction to require purchaser to enter into a positive covenant as part of the purchase

22
Q

Holiday homes

A

Wilkinson v Kerdene

24
Q

Why was an injunction not given in Jaggard?

A

Too oppressive

25
Q

Halsall v Brizell

A

Estate shared facilities

26
Q

Roake v Chadham

A

Cannot be excluded because allowance for contrary intention in s.79

28
Q

What is a possible contractual solution to the timing issue for benefits of FCs in building schemes?

A

S.56(1) LPA (need a deed) and s.1 C(RoTP)A

29
Q

Cres Nicholson Residential v McAllister

A

Deed must describe land so it would be easily ascertainable for s.78(1)

30
Q

What does s.84 LPA do?

A

Allows you to abolish a covenant

32
Q

Newton Abbot v Williamson on requirement 3 burden negative GC

A

Upjohn thought no compete clause benefits owner and land - need to affect ‘either the value… or the method of its occupation’

33
Q

What are the three requirements for the burden of a negative FC to run?

A

Relates to land, intended to run, dominant land capable of benefitting and negative covenant

34
Q

In what report did the Law Com propose the introduction of ‘land obligations’ instead of positive/negative covenants

A

No.327

36
Q

Federated Homes v Mill Lodge on s.78(1) LPA

A

Annexes all positive and negative benefits of FC

37
Q

What is the effect on the LPA of Report No.327

A

If imposed, would need to amend s.1 LPA to make land obligations (positive and negative burden and benefit FC) legal interests.

38
Q

S.78 annexes all positive and negative benefits of FC

A

Federated Homes v Mill Lodge

40
Q

Federated Home v Mill Lodge on requirement 1 of burden of negative FCs

A

Not build more than X houses

41
Q

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?

A

Rhone v Stephens

43
Q

Reid v Bickerstaff on building schemes and benefit of FCs

A

need a defined area of land and an intention that covenants are for the common benefit of all

44
Q

Who highlighted identifying land to be benefitted for the purposes of s.78 LPA can be problematic?

A

Howell

45
Q

Jaggard v Sawyer

A

Cul-de-sac covenant for garden

46
Q

London County Council v Allen

A

Roadway

48
Q

What are the three methods of transmitting the benefit of a covenant?

A

Assignment, annexation and building schemes

49
Q

Who highlighted that Federated Homes’ interpretation of s.78 LPA is not at odds with s.79?

A

Snape

50
Q

How does Re Dolphins Conveyance qualify the requirements given in Reid v Bickerstaff?

A

Reid said need an intention to benefit all - RDC says understanding of wider community interest

52
Q

Reid v Bickerstaff on duties for benefit of FCs

A

Not required that all owners are subject to the same duties

54
Q

Newton Abbot v Williamson

A

Devonia ironmongers

55
Q

What are the three methods of transmitting the burden of a positive FC?

A

Contractual, estate rent charges or mutual benefit and burden

56
Q

Rebuttable presumption for s.79 that the negative burden is intended to pass

A

Morrells Oxford v Oxford United

57
Q

What case says that there is no need to register mutual benefit/burden as they do not create estates/interests in land?

A

Elwood v Goodman

58
Q

What does Elwood v Goodman say about mutual benefit and burden and protection?

A

No need to register them - no do not create an estate/interest

59
Q

What if the servient land of the negative covenant is unregistered (for registration)?

A

Use a Class D(iii) Land Charge

60
Q

Wilkinson v Kerdene

A

Holiday cottage

61
Q

What is the remedy for covenants are personal contactual obligations?

A

Can be enforced at law OR equity (claim in damages)

62
Q

What is the argument about s.79(1) LPA and positive FC burden?

A

Doesn’t exclude burden of positive covenants being annexed

63
Q

How did Wilkinson v Kerdene stretch requirement 1 of mutual benefit and burden?

A

stretched conditionality so you only need to receive part of the benefit to be liable for entire burden

64
Q

How must a NEGATIVE freehold covenant be protected if STO is UNREGISTERED?

A

Class D(iii) Land Charge

65
Q

When does a Class D(iii) Land Charge need to be used?

A

When the STO is unregistered for FC

66
Q

Do FCs operate at law or equity?

A

EQUITY

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