Freehold Covenants Flashcards
(27 cards)
What is a covenant in land law?
A covenant is a promise relating to land, usually contained in a deed, though a deed is not essential. It must be in writing and signed by the grantor
What are the parties and land involved in a covenant?
Covenantee: person receiving the benefit
Dominant land: land benefitting from the promise
Covenantor: person making the promise
Servient land: land burdened by the promise
Successor covenantee: new owner of dominant land
Successor covenantor: new owner of servient land
What is the key legal issue with freehold covenants?
Whether a covenant can be enforced by or against successors in title (e.g. can C enforce a covenant made between A and B against D?). The benefit and burden must pass to successors under common law or equity.
What is a positive covenant?
A promise to do something (e.g. repair a fence), generally requiring expenditure of time, money, or effort.
What is a restrictive covenant?
A promise not to do something (e.g. not to build above a height), complied with by inaction.
How do you determine the nature of a covenant?
Use the ‘hand in pocket’ test. A covenant requiring expenditure is positive. Look at the substance, not the form.
How are mixed covenants interpreted?
Separately: if obligations can stand alone (e.g. paint exterior and not paint door red)
Single obligation with condition: e.g. “not build without consent” = restrictive with positive condition
What is the rule in Tulk v Moxhay?
Equity allows enforcement of a restrictive covenant against a successor covenantor if four requirements are met:
Covenant is restrictive
Accommodates dominant tenement
Intention for burden to run
Successor has notice
What are the aspects of “accommodates the dominant tenement”?
Covenantee must hold an interest in land
Covenant must touch and concern land
Dominant and servient land must be proximate
How is notice of a covenant established?
Registered land: notice entered on charges register
Unregistered land: protected by Class D(ii) land charge
If unprotected, not binding on purchasers for value but binds volunteers
What must be shown to enforce a covenant in equity?
Both the benefit and burden must pass in equity. The covenant must touch and concern the land, and benefit must pass by:
Express annexation
Statutory annexation
Assignment
Building scheme
What is express annexation?
Covenant wording clearly links benefit to land (e.g. “benefit to land known as 5 High Street”).
What is statutory annexation?
deems covenant to pass with land unless expressly excluded
What is assignment of benefit?
Separate transfer of benefit of a covenant, must be in writing and signed. Occurs at time of sale.
What is a building scheme?
A set of mutual covenants in a housing development, enforceable by and against all purchasers
What equitable remedies are available for breach of covenant?
Injunctions (prohibitory or mandatory) or damages in lieu. Equitable principles apply (e.g. delay defeats equity)
Does the burden of a covenant pass at common law?
No. Burden remains with the original covenantor.
What is the remedy at common law against the original covenantor?
Damages only, as original covenantor is no longer in possession or control.
What is an indemnity covenant?
A promise by a buyer to indemnify the seller for any losses from covenant breaches. It enables indirect enforcement through a chain.
What are the limitations of indemnity covenants?
No burden passes. Chain may break due to missing links, bankruptcy, or absence of indemnity agreement.
What is the rule in Halsall v Brizell?
A successor covenantor cannot take a benefit under a deed (e.g. easement) without accepting the connected burden.
What conditions must be satisfied for mutual benefit and burden?
Link between benefit and burden
Real choice whether to take benefit
Benefit and burden arise in same transaction
What is an alternative method to enforce covenants against successors?
Grant a long lease. Lease covenants are enforceable under the doctrine of privity of estate.
How does the benefit of a covenant pass at common law?
Express assignment: must be in writing with notice to covenantor
Implied assignment: four conditions:
Covenant touches and concerns land
Intention to benefit successors
Original covenantee has legal estate
Successor has legal estate
