Freehold Covenants

Question 1

How is a restrictive covenant formed?

Answer 1

Has to be in writing, signed by the grantor

Question 2

What is the hand in pocket test?

Answer 2

This is the test to determine whether the covenant is positive or negative- do you have to put your hand in your pocket and spend 1) time 2) energy 3) money in order to exercise it- if so- positive

Question 3

Can a positive covenant continue with the land?

Answer 3

No it cannot

Question 4

Can a Restrictive covenant continue with the land?

Answer 4

Yes

Question 5

What are the equitable rules for passing a covenant

Answer 5

Burden:
Rule from Tulk v Moxhay:
1) it must be negative
2) it must accommodate the dominant land (1) holders must hold an interest in the land 2) the covenant must ‘touch and concern’ the dominant land, 3) there must be proximity between the dominant and servient land)
3) there must be intention
4) there must be notice

Benefit:
must touch and concern and then must pass by:
1) annexation
2) assignment
3) building scheme

Question 6

How does a positive covenant pass? (common law rules must be passed)

Answer 6

Burden:
General burden is that the burden does not pass- burden remains with the original covenantor- therefore possible for the original person to be sued- so each party takes out an indemnity covenant.

Exception to genenal rule under Halsall v Brizell: doctrine of mutual benefit and burden.

Benefit:
Have to establish that the benefit has passed at common law:
1) express assignment or implied assignment

Implied assignment has 4 conditions:
1) must touch and concern the land
2) intention for the benefit to pass
3) The covenantee must hold a legal estate in the land on the date of the covenant

Question 7

What are the remedies available?

Answer 7

1) injunction
2) damages