Covenants

Question 1

Spencer’s Case

Answer 1

At common law, leasehold covenants run with the land provided that they touch and concern the land itself and are not purely personal privileges.

Currently: the law is essentially the same following the the interpretation of Deasy’s Act ss.12 and 13 in Lyle v Smith.

Covenants that run with the land create privity of estate between L and T.

Question 2

ss. 12 and 13 Deasy’s Act

Answer 2

Replaces common law concept of privity of estate. The benefit and the burden of a leasehold covenant are enforceable by and against the assignee of the original parties.

Interpreted in Lyle v Smith.

Question 3

Lyle v Smith

Answer 3

ss.12 and 13 of Deasy’s Act applies only to covenants that touch and concern the land.

Question 4

Significance of 1963

Answer 4

Modern planning regime is implemented and so covenants are no longer used to control use of land under long leases.

Question 5

What is a covenant?

Answer 5

A formal, legally binding promise which is contained in a document executed under seal (a deed).

Question 6

Benefit and burden

Answer 6

Benefit of the covenant: the person who has an interest in seeing the covenant enforced.

Burden of the Covenant: the person who is obliged to perform the covenant.

Question 7

S.70 LCLRA

Answer 7

Extends the benefit of a covenant contained in a deed to anyone upon whom an estate or interest is conferred upon by the deed (e.g. for joint tenants).

Question 8

General common law rule

Answer 8

Privity of contract: original parties to the deed are bound.

Question 9

The rule in Halsell v Brizell

Answer 9

• One of the some small, limited exceptions to the general rule that the burden of a covenant does not run at common law.
• 3 house with access to a private road. Brizell was order to pay into the shared fund.
• Couldn’t approbate and reprobate.

Limit: the covenant must benefit the person. There must be mutuality.

Question 10

Rhone v Stephens

Answer 10

House with a roof over a cottage. Did the successors in title have to repair the leaking roof?

No - no mutuality here. The larger house did not benefit.

Question 11

The rule in Tulk v Moxhay

Answer 11

• Covenants at equity
• Leicester square houses - promised not to develop on the green in the centre.
• Held: Moxhay knew that the previous owner had promised the individual house owners that this land would not be built on. They granted the injunction.
• Restrictive only, NEVER applied to a positive covenant

Result: restrictive covenants are now registrable as s.69 burdens on land.

Question 12

Successors in title and the benefit of covenants

Answer 12

• The benefit passes to a later purchaser where the covenant is connected to the land and the parties hold the same estate.

Question 13

Gaw v Irish Rail

Answer 13

• A covenant may run with an incorporeal hereditament (in this case a right of way) just as it may run with the land.
• It must not be a purely personal privilege.

Question 14

s.40 LCLRA

Answer 14

The benefit and burden of covenants runs with the land.

Question 15

s.49 RTA 1964

Answer 15

Power of discharge by consent (a way out of covenants).

Question 16

S.50 LCLRA

Answer 16

Court power of discharge at the application of the servient owner (the person who has the burden).

• Allows for the discharge of covenants that no longer make sense today, to prevent odious burdens.
• Requires the court to have regard for the nature of the covenant, the purposes for which it was entered into, and the changes in conditions that may have taken place since that happened.