Covenants Flashcards
(19 cards)
Austerberry
GR: burden never runs with the land at law.
Tulk v Moxhay
Tulk owned 3 sides of Leicester Square and the garden
Tulk sold the garden to Elms, subject to covenants to ‘keep and maintain’ it as an ornamental open space. Later buyers each made the same covenant individually
Knowing about the covenant, Moxhay bought the garden and began to cut down trees
Court of Chancery, granted injunction to restrain M’s building activity
Decision paved the way for enforcement of covenants against later owners
Running of the Burden in Equity: The Rules
1) Covenant must be Restrictive
2) Covenant must Touch and Concern the Land
3) Original covenantee must have owned (/acquired) legal estate at the time the covenant was made
4) Original parties must have intended covenant to run with the land (s 79 presumption)
5) Notice (s 32 LRA) must be entered on Register of Title of burdened land
Rhone v Stephens [1994] 2 AC 310 (HL) restrictive:
A covenant to keep a roof that protruded over the covenantee’s house in windtight and watertight condition = positive
Covenant must Touch and Concern the Land
P & A Swift Investments
Equity will only enforce the covenant if it is to protect the value and amenity of the covenantee’s neighbouring land
P & A Swift Investments v Combined English Stores Group plc [1989] AC 632 (HL):
- The covenant benefits only the landowner for the time being, and if separated from the land ceases to be of benefit to the covenantee, and
- The covenant affects the nature, quality, mode of user or value of the land, and
- The covenant is not expressed to be personal
Hallsall v Brizell restrictive covenants
Successor in title cannot selectively take the benefits of a right without also accepting the associated burdens. A duty can run as long as the dutyholder also wishes to, and does, exercise the attached reciprocal right.
At the time of the covenant, the covenantee must have owned the benefitting land.
London CC v Allen [1914] 3 KB 642
The covenant was unenforceable against successors because the Council (covenantee) did not own any land benefitted by the covenant.
The original parties must have INTENDED the covenant to run with the land
Implied in statute s79(1) LPA
s.79(1) can be disapplied or excluded — expressly or impliedly — if the wording of the covenant shows a contrary intention: Morrells of Oxford Ltd.
Running of Benefit: Annexation
Can be Restrictive or Positive
Covenant must Touch and Concern the Land (P&A Swift)
Benefitting land, in which covenantee held legal estate, must be identifiable
Original parties must have intended annexation (s 78 presumption applies, unless parties contracted out)
Benefitting land, in which covenantee held legal estate, must be identifiable.
(annexation)
Dano Ltd v Earl Cadogan [2004] 1 P & CR 13
Earl Cadogan conveyed land to Chelsea Council, which covenanted with him to use the land only to house the working classes. Made for the benefit of land owned by the family’s trust, ‘the Cadogan Settled Estate’, since wound up
HELD that, as ‘the Cadogan Settled Estate’ no longer existed, it was now not possible to identify land benefitting from the covenant, so it was unenforceable against Dano Ltd
Must have been intended to run by original parties. (annexation)
Federated Homes v Mill Lodge Properties [1980] 1 WLR 594
HELD intention is implied by s 78(1) LPA 1925 for covenants entered into since 1926, unless parties opt out
‘A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title…’
Remedies for breach of covenant?
Damages: only against original coventantor, since its common law
Injunctions: available against current, in equity.
Discharging or Modifying a Covenant: s 84 LPA 1925
Application has TWO stages:
- Jurisdiction: must meet one of the grounds in s 84
- Discretion: LC may now make a decision and decide terms, if any
Discharging or Modifying a Covenant:
Jurisdiction Grounds
the covenant should be deemed obsolete
the parties are in agreement to discharge/modify, or
the discharge/modification would not injure anyone else entitled to the benefit, or
the covenant would impede some reasonable use of the property
Jurisdiction Stage: Reasonable User Ground.
s 84(1)(aa) + s 84(1A) + s 84(1B)
does NOT secure practical benefit of substantial value or advantage
is contrary to the public interest
Shephard v Turner discharge of covenant
Turner objected to a neighbour building on land subject to a restrictive covenant (originally meant to preserve open space).
Rejected: Preservation of character or privacy can still be a “practical benefit” under s.84(1)(aa), even if the land use has evolved.
Morris v Brookmans Park Roads Ltd discharge of covenant
Morris wanted to build flats on land burdened by covenants restricting to single dwellings. Brookmans Park Roads Ltd (estate manager) objected.
Rejected. the restriction continued to secure substantial practical benefits to neighbouring residents, like preventing overdevelopment, and helping coherent estate plan.
University of Chester discharge of covenants
University sought to develop student housing on land burdened by restrictive covenants allowing only one house. Accepted.
The covenant was found to impede reasonable use of the land, continued enforcement did not secure any practical benefit to the neighbours.
Modern planning and housing needs may justify lifting old covenants if there’s minimal impact on neighbours.
Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd
covenant in public interest.
You can’t build in breach and then ask for forgiveness under s.84 - good faith required.
