Property Law Second Term - FREEHOLD COVENANTS

Question 1

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

Answer 1

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

Question 2

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

Answer 2

Not use premises as ironmongers

Question 2

Thames mead Town v Allotey requirements for mutual benefit and burden

Answer 2

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

Question 3

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

Answer 3

Chain of assignment, Re Pinewood Estates

Question 3

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

Answer 3

Reid v Bickerstaff

Question 4

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

Answer 4

Need land adjacent to ST such that enforcing will benefit DT

Question 4

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

Answer 4

Hill v Tupper –> only benefitted business, not land

Question 4

What case gave the requirements for mutual benefit and burden?

Answer 4

Thames mead Town v Allotey

Question 4

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?

Answer 4

Re Dolphin’s Conveyance

Question 5

How can the difficulties of freehold covenants be avoided?

Answer 5

s.16 Commonhold and Leasehold Reform Act 2002

Question 6

Tulk v Moxhay

Answer 6

Burden can transmit to successors of an ST, Leicester square

Question 7

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

Answer 7

Burden does not run if the covenant is personal

Question 7

Jaggard v Sawyer on burden relating to land

Answer 7

Using land as a garden

Question 7

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

Answer 7

Roake v Chadham

Question 9

How can the benefit of an FC be annexed expressly?

Answer 9

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

Question 9

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

Answer 9

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

Question 9

How can a positive covenant be protected?

Answer 9

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

Question 10

S.79(1) LPA

Answer 10

Burden of negative covenants deemed to run without contrary intention

Question 11

Morrells Oxford v Oxford United requirement 2 burden negative FCs

Answer 11

‘Rebuttable presumption’ that covenants are intended to run

Question 11

Refusing to pay to maintain and repair sewers

Answer 11

Thamesmead Town v Allotey

Question 12

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

Answer 12

Cres Nicholson v McAllister

Question 13

How can a covenant be created?

Answer 13

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

Question 13

How can you abolish a covenant?

Answer 13

Through s.84 LPA

Question 14

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

Answer 14

In Halsall, no choice about sea wall

Question 16

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

Answer 16

S.78(1) LPA

Question 16

Why is there no freehold title in flats?

Answer 16

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

Question 18

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

Answer 18

Injunction

Question 19

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

Answer 19

Chain of indemnity through a contract

Question 21

Re Dolphins Conveyance (building schemes, benefit of FCs)

Answer 21

Only need an understanding of wider community interest

Question 22

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

Answer 22

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

Question 22

Holiday homes

Answer 22

Wilkinson v Kerdene

Question 24

Why was an injunction not given in Jaggard?

Answer 24

Too oppressive

Question 25

Halsall v Brizell

Answer 25

Estate shared facilities

Question 26

Roake v Chadham

Answer 26

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

Question 28

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

Answer 28

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

Question 29

Cres Nicholson Residential v McAllister

Answer 29

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

Question 30

What does s.84 LPA do?

Answer 30

Allows you to abolish a covenant

Question 32

Newton Abbot v Williamson on requirement 3 burden negative GC

Answer 32

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

Question 33

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

Answer 33

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

Question 34

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

Answer 34

No.327

Question 36

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

Answer 36

Annexes all positive and negative benefits of FC

Question 37

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

Answer 37

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

Question 38

S.78 annexes all positive and negative benefits of FC

Answer 38

Federated Homes v Mill Lodge

Question 40

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

Answer 40

Not build more than X houses

Question 41

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?

Answer 41

Rhone v Stephens

Question 43

Reid v Bickerstaff on building schemes and benefit of FCs

Answer 43

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

Question 44

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

Answer 44

Howell

Question 45

Jaggard v Sawyer

Answer 45

Cul-de-sac covenant for garden

Question 46

London County Council v Allen

Answer 46

Roadway

Question 48

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

Answer 48

Assignment, annexation and building schemes

Question 49

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

Answer 49

Snape

Question 50

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

Answer 50

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

Question 52

Reid v Bickerstaff on duties for benefit of FCs

Answer 52

Not required that all owners are subject to the same duties

Question 54

Newton Abbot v Williamson

Answer 54

Devonia ironmongers

Question 55

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

Answer 55

Contractual, estate rent charges or mutual benefit and burden

Question 56

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

Answer 56

Morrells Oxford v Oxford United

Question 57

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

Answer 57

Elwood v Goodman

Question 58

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

Answer 58

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

Question 59

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

Answer 59

Use a Class D(iii) Land Charge

Question 60

Wilkinson v Kerdene

Answer 60

Holiday cottage

Question 61

What is the remedy for covenants are personal contactual obligations?

Answer 61

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

Question 62

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

Answer 62

Doesn't exclude burden of positive covenants being annexed

Question 63

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

Answer 63

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

Question 64

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

Answer 64

Class D(iii) Land Charge

Question 65

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

Answer 65

When the STO is unregistered for FC

Question 66

Do FCs operate at law or equity?

Answer 66

EQUITY