Chapter 8: Freehold Covenants Flashcards
Who is the covenantor?
The person entering into the covenant
Usually the buyer
Who is the covenantee?
The person having the benefit of the covenant
Usually the seller
What is a restrictive / negative covenant?
An obligation imposed on land which is negative in nature
E.g. Covenant not to build more than one dwelling on land
What is a positive covenant?
Requires covenantor to do something
E.g. Obligation to erect and maintain a fence
Can the original covenantee enforce a covenant against the original covenantor even after land has been sold?
Yes, the original covenantee can enforce a covenant against the original covenantor due to privity of contract
Will the burden of a covenant bind successors in equity?
Yes, if:
- The covenant is negative in nature
- The covenant benefits land itself and is not mere personal right
- The burden was intended to run with the land (implied unless parties expressly state otherwise)
- The successor in title has notice of covenant (via charges register for registered land or D(iii) land charge for unregistered)
Will the benefit of a covenant bind successors in equity?
Yes, if:
- The covenant touches and concerns land; AND
- Through annexation (benefit is attached to land - this is assumed unless expressly excluded), by expresss assignment or as part of a building scheme
Will the burden of a covenant bind successors in common law?
Generally, the burden does not pass at common law
Will the benefit of a covenant bind successors in common law?
Generally, a positive covenant will only bind the original covenantor at common law
What are the exceptions to the rule that the burden does not pass at common law?
- Chain of indemnity covenants
- The mutual benefit and burden rule
What is a chain of indemnity covenant?
