8 - Covenants Flashcards
What is a covenant?
Legally binding obligations/promises. Can be restrictive or positive.
What is a restrictive covenant?
A promise not to carry out a certain act. Usually placed on a home owner when a house is built and include restrictions not to run a business or build above a certain height.
What is a positive covenant?
One which imposes an obligation on a purchaser to do something (and usually spend money), for example maintaining a fence.
If a covenant is worded negatively but involves expenditure which type will it be and why?
A positive covenant, because the test is one of substance not form (look at substance not wording).
What are the rules of enforcing a covenant?
Under privity of contract, they are always enforceable between original parties. Once land is sold, privity no longer exists and only enforceable if the benefit passes to the purchaser of benefitting land and the burden passes to the purchaser of the burdening land.
What four things must be satisfied for the benefit of a covenant to run at common law? Give a case law example.
1 - covenant touches and concerns the land of the covenantee
2 - original covenantee owned legal estate when made
3 - original parties intended it to pass with the land
4 - successor in title derives from the original covenantee
Case - Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board
What is the general rule in relation to the passing of the burden of a covenant at common law and the exceptions?
The burden will not pass to subsequent purchasers (Austerberry v Oldham Corporation). Exceptions:
1 - Chain of indemnity covenants
2 - Halsall v Brizell (cannot take benefit without subscribing to obligations under it)
What two things must a non-original covenantee show in order to enforce the benefit of a covenant at equity?
The covenant must touch and concern the land and was transmitted to them by either; express annexation, implied annexation (s78), assignment (unbroken chain of covenants) or a building scheme.
How can the benefit of a covenant be enforced at equity by a building scheme?
A developer of housing development imposes mutually enforceable covenants to improve the quality of life.
What 5 conditions must be satisfied for a purchaser of burdened land to be bound a covenant in equity and under what case law?
|TULK v MOXHAY 1 - covenant is restrictive 2 - burden was intended to pass 3 - two pieces of land - dominant and servient tenement 4 - covenant benefits dominant tenement 5 - purchaser has had notice
In what 4 circumstances can someone apply to Upper Tribunal (Lands Chamber) to partially or fully discharge a covenant under s84 LPA 1925?
1 - covenant is obsolete due to changes in property or neighbourhood (Chatsworth Estates Co v Fearwell)
2 - it would prevent reasonable use of the land
3 - benefitting persons expressly or impliedly consented to its discharge (Shaw v Applegate)
4 - discharge/modification will not injure those entitled to the benefit
What are 2 methods of discharging a covenant (aside from Upper Tribunal)?
1 - owners of benefitting land enter into deed of release or variation
2 - common ownership and occupation of the benefitting and burdened land (merger).
How is a restrictive covenant protected in registered and unregistered land?
Only recognised in equity, thus equitable interests.
In unreg - protected by Class D (ii) Land Charge under LCA 1972 post 1/1/26, or doctrine of notice if prior
In reg - protected by notice in charges register
