FREEHOLD COVENANTS

Question 1

DEFINITION

Answer 1

• a promise made in a deed that is enforceable irrespective of consideration
• can be in a stand alone transaction from one neighbour to another
• more like likely when one sells part of their land to another and gives covenants a sort of the bargain
• can last for future owners of the land
• regarded as proprietary interest in land though equitable in nature
• it is both a contract and proprietary obligation

Question 2

POSITIVE COVENANTS

Answer 2

• require owner of burdened land to take action on their own or adjoining property (usual requires monetary expenditures)

Question 3

NEGATIVE COVENANTS

Answer 3

• also known as restrictive

- require owner of land to refrain from activity on the land

Question 4

COVENANTS AS CONTRACTS

Answer 4

• promises made by deed from one to another

- made by Covenanter and Covenantee

Question 5

COVENANTERS LAND: BURDEN OF COVENANT

Answer 5

• original Covenanter is under burden of covenant
• must uphold positive and negative covenants
• the burden can run with the land rather than the Covenanter
• so whoever holds the land is is bound to the covenant
• usually only negative covenants that run with the land

Question 6

COVENANTEES LAND: BENEFIT OF THE COVENANT

Answer 6

• original Covenantee has the benefit of the covenant
• can enforce it as a matter of contract
• can sue for performance of covenant and claim damages for past breaches, injunction or adherence to specific performance
• covenant can run with the land subsequent owners may obtain the benefit of the covenant and sue anyone for breach

Question 7

SUING AT LAW

Answer 7

• a person suing on a covenant at law will be claiming D is subject to burden and should pay damages
• C can choose damages which the court cannot refuse
• circumstances for remedies in law are narrower than in equity

Question 8

SUING IN EQUITY

Answer 8

• equity mitigates the harshness of common law
• easier to enforce covenants in equity
• equity can run with the land in a way it can’t in law meaning the burden is wider
• only equitable remedies are available and are at the discretion of the court and can be withheld
• remedies are: injunction and specific performance
• if C sues in equity either by choice or against non-original Covenanter principles of registered and unregistered are conveyed
• restrictive covenants may need to be registered to be enforceable