Restrictive covenant Flashcards
Freehold covenant
a contractual agreement between neighbouring parties
Positive covenant
a specific act or providing a service
Negative covenant
refrains the landowner from taking part in a specific activity on the land
Questions of enforcement
Has the benefit run with the land?
Has the burden run with the land?
Has the benefit and burden run with the land?
S.56(1) extends class of original covenants
- person must be within generic description
- must be identifiable at the creation of the covenant
- Covenant must be made WITH…
S.1(1)(3) Contracts (Rights of Third Parties Act) Act 1999 (only applies to the benefit)
being identified in any way in the contract will allow you to benefit.
Common law transmission of a benefit
> touches and concerns the covenantee’s land
Benefit intended to run with the land
Covanantee and successors must own the land
Land benefitted must be identifiable in document containing covenant.
Smith and Snipes Hall Farm (touching the land)
the benefit was transferred as the covenant benefitted the land and so affected it.
P and A Swift Investments: test for toucing and concerning land
- The covenant only benefits the landowner and if seperated, ceases to benefit the covenantee.
- The covenant affects the use, nature or value of the land.
- The covenant is not expressed to be personal.
Implied words (S.78(1) LPA)
A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors.
For benefit to runwith land, must be identified in document containing covenant
Snipes Hall Farm- extrinsic evidence is admissible to identify the land inquisition.
Can a burden run at common law?
No as shown in Austerberry.
What happens with an indemnity covenant?
- original covenantor remains liable
- can then recover the if the covenant is in breach by the the new covenanters.
Halsall v Brizell
If you take a benefit, you must take the obligations.
Thamesmead
Can choose not to take on the benefit, even if it is just to escaoe the burden.
Davies v Jones
Benefit and burden must be in the same transaction.
Tulk v Moxhay
The burden of a negative covenant passed on in equity.
Criteria to pass on the burden of a negative covenant in equity.
> Covenant must be retrictive (Rhone v Stephens confirmed)
Covenant made for the benefit of covenantees land
Was the burden intended to run with the covenantor’s land (express or s.79(1) LPA presumes).
Has the covenant been protected against the covenantor’s title (land charge or registered as notice).
If all 4 requirements are met, what can be moved?
The negative covenant of the burden.
What are the three transfer methods of the negative covenant of the burden?
Annexation
assignment
Scheme of development
Express annexation
appropriate words drafted into the deed
Renals- “their heirs” allowed
Bath Rugby- ‘neighbourhood’ not precise enough.
Implied annexation
Martin v Flight Refuelling- implied from the deed.
Statutory annexation (S.78)
> Federated homes- must touch + concern as well as run benefit for successors.
Roake- nop automatic operation of s.78.
Crest Nicholson- land benefitting can be identified using external evidence.
Assignment
> covenant made for benefit of covenantee land
Assignment must happen at time of dominant transfer
dominant land must be identifiable
Scheme of Development
- local law
- mutually enforcable covenant.
