Freehold Covenants

Question 1

PA Swift Investments v Combined English Stores

Answer 1

Rules for passing benefit at common law (implied assignment)
1) Must touch and concern land
Must affect the nature, value, quality or convenience of the land
2) Original parties must have intended benefit to pass
3) Original covenantee must have held legal estate
4) Successor in title to original covenantee must hold legal estate

Question 2

Newton Abbot v Williamson & Treadgold

Answer 2

A covenant not to compete with a business carried out on covenantee’s land may touch and concern dominant land

Question 3

London CC v Allen

Answer 3

Benefit cannot pass at common law where covenantee does not hold legal estate
Burden will pass at equity if covenantee had an interest in the dominant land and the successor in title has an interest

Question 4

Smith & Snipes Hall Farm v River Douglas

Answer 4

Successor in title does not need to hold the same legal estate as the original covenantee

Question 5

Austerberry v Oldham Corporation

Answer 5

General rule - burden does not pass at common law

Question 6

Tophams v Earl of Sefton

Answer 6

Original covenanter retains burden of covenant

Question 7

Halsall v Brizell

Answer 7

Cannot take the benefit of covenant without corresponding burden

Question 8

Thamesmead Town v Allotley

Answer 8

Must be close correlation between burden and benefit

Question 9

Davies v Jones

Answer 9

Benefit and burden must arise from same transaction

Question 10

Rhone v Stephens

Answer 10

Must have choice regrading whether to take the benefit subject to the burden - did not have a choice about right of support
Cannot enforce positive covenants against successors in title

Question 11

Tulk v Moxhay

Answer 11

Rules for passing burden at equity

1) Must be negative in substance
2) Must accommodate dominant tenement
3) Original parties must have intended burden to run
4) Person against whom the covenant is being enforced must have notice when purchased land

Question 12

Haywood v Brunswick

Answer 12

Hand in pocket test - can the covenant be fulfilled by doing nothing?

Question 13

Shepherd Homes v Sandham

Answer 13

If covenant can be severed - burden of negative part will pass

Question 14

Powel v Hemsley

Answer 14

If covenants are closely linked, might be overall positive/negative

Question 15

Bailey v Stephens

Answer 15

Proximity between two pieces of land will demonstrate that the dominant land actually derives benefit

Question 16

Morrells v Oxford United FC

Answer 16

Implied intention that burden should run under s79 LPA 1925 unless contrary wording in covenant

Question 17

Renals v Cowlishaw

Answer 17

Benefit will pass in equity if it touches and concerns land via:

1) Annexation - attached to dominant land for benefit of successors in title
2) Statute - s78
3) Assignment - personal transfer

Question 18

Federated Homes v Mill Lodge Properties

Answer 18

Covenant is annexed to each and every part of land

s78 LPA 1925 automatically passes the benefit of restrictive covenants to future owners

Question 19

Roake v Chadha

Answer 19

s78 LPA 1925 applies unless contrary intention (expressly excluded)

Question 20

Crest Nicholson Residential v McAllister

Answer 20

Deed must make clear reference to land which is benefitted

Prospective purchaser of servient land should be able to identify the benefitted land from inspecting register

Question 21

Small v Oliver Saunders Developments

Answer 21

Pre-1926 covenants must be expressly annexed

Question 22

Miles v Easter

Answer 22

Benefitted land must be properly identified and assignment can only be made at the time of conveyance

Question 23

Elliston v Reacher

Answer 23

Benefit can be passed in building scheme:

1) All purchasers by property from same vendor
2) Vendor divides estate into plots prior to sales
3) Restrictive covenants intended to continue for benefit of other plots
4) Every purchaser acquires plot on understanding that covenants benefit all other plots

Question 24

Reid v Bickerstaff

Answer 24

Area of building scheme must be clearly defined