Freehold Covenants Flashcards
(29 cards)
Are covenants capable of being legal?
Covenants are not capable of being legal interests and are equitable by nature.
What are the formalities for granting a covenant?
The relevant formality is in writing and signed.
Who is the covenantor?
The person who makes the promise and who has the burden of the covenant.
Who is the covenantee?
The recipient of the promise and who has the benefit of the covenant.
What is the servient or burdened land?
The land bound by the covenant and owned by the covenantor.
What is the dominant or benefited land?
The land with the benefit of the covenant, owned by the
covenantee
What is annexation?
This means that the benefit of the covenant is attached to the land of the covenantee and the benefit passes automatically to any successor in title of the
covenantee.
What is assignment?
An express transfer of the benefit of the covenant to a successor in title to the covenantee.
What is a positive covenant?
A covenant that requires some effort or expenditure to perform the obligation.
How does the burden of a covenant pass under common law?
It cannot pass because it would result in a personal obligation against a person who has not covenanted.
How does the burden of a covenant run in equity?
The burden of a restrictive covenant may pass in equity under the doctrine in Tulk v Moxhay [1848].
What requirements must be satisfied for the doctrine in Tulk v Moxhay to arise?
The covenant must be restrictive in substance.
There must be identifiable dominant land owned by the covenantee at the time the covenant is created.
The covenant must touch and concern the dominant land.
The covenant must be made with the express or implied intent to burden the servient land.
The owner of the servient land must have notice of the covenant for it to bind them.
What is the test for determining whether a covenant touches and concerns dominant land?
The covenant must benefit only the dominant owner for the time
being, so that, if separated from their land, it ceases to be advantageous to them;
The covenant must affect the nature, quality, mode of user or value of the land of the
dominant owner; and
The covenant must not have been given only to one specific dominant owner.
How is the intent to burden servient land implied?
s.79(1) LPA 1925 states that unless a contrary intention is
expressed, a covenant is deemed to be made by the covenantor on behalf of himself and his successors in title and the person’s deriving title under him or them.
What are the three devices where positive covenants can be enforced against successors in title of the servient land.
Create a lease
Indemnity covenant
The doctrine of mutual benefit
Why does creating a lease enforce positive covenants against successors in title of the servient land?
Because positive covenants are binding on a successor in title to a tenant.
What is the doctrine of mutual benefit and burden?
A person who wishes to take advantage of a service/facility which benefits their land, must also comply with any corresponding obligation.
What are the two pre-conditions for the doctrine of mutual benefit and burden?
There must be a clear correlation between the benefit and the linked burden.
The covenantor’s successors in title must have the opportunity to elect whether to take the benefit (and accept the related burden) or to renounce it (and escape the related burden).
How does the benefit of a covenant run at common law through annexation.
A covenantee’s successor can enforce the covenant at common law if:
The covenant touches and concerns the land.
There was an intention that the benefit should run with the estate owned by the covenantee.
The covenantee must have a legal estate in the benefited land and the buyer must also take legal title.
How does the benefit of a covenant run at common law through assignment?
This must take place at the same time as the transfer of land.
It must be in writing and
signed by the assignor (ie the original covenantee) and written notice of the assignment must
be given to the person with the burden of the covenant
How does the benefit of a covenant run in equity through express annexation?
The covenant should express an intention to benefit each and every part of a defined piece of land.
How does the benefit of a covenant run in equity through implied annexation?
In some situations, the court will be willing to imply annexation where such annexation
was obviously intended and it would be an injustice to ignore that intention.
The required intention must be manifested in the transfer as construed in the light of all the surrounding circumstances.
How does the benefit of a covenant run in equity through statutory annexation?
s.78 LPA 1925 automatically annexes a freehold covenant to each and every part of the land retained by the covenantee provided the following criteria is met:
The covenant must have been created after 1925.
The covenant must touch and concern the land.
The dominant land must be identifiable from a description, plan or other reference in the transfer, aided, if necessary, by external evidence to identify the land.
What are the characteristics of a building scheme that will result in the benefit of a covenant running in equity?
It applies to a defined area where title is derived from a common owner;
The estate was laid out in lots subject to restrictions intended to be imposed on all the lots;
The common owner intended the restrictions to apply to all the lots to be sold; and
The original buyers bought their lots on the basis that the restrictions would benefit all of
the lots in the scheme.
