freehold covenants Flashcards
(29 cards)
What are freehold covenants?
Contractual promises concerning land made by deed to do or not to do something on the land.
Freehold covenants can be either restrictive or positive.
What is a restrictive covenant?
A covenant not to do something on the land.
Examples include no commercial use or no building above a specified height.
What is a positive covenant?
A covenant to do something on the land.
Examples include works of repair or maintenance.
Who can enforce a restrictive covenant?
Future owners of the land.
Unlike positive covenants, which can only be enforced against the original covenantor.
What is the distinction between covenants and easements?
Covenants are promises about land use, while easements are rights to use land.
Covenants exist only as equitable interests.
What is a fencing easement?
A positive covenant requiring the owner to maintain a fence or boundary structure for the benefit of a neighboring property.
This does not bind successors in title.
How can a restrictive covenant be created?
By a signed written document executed by the party conferring the benefit.
It is often included in the deed transferring property ownership.
What is the role of the covenantor and covenantee?
The covenantor is the person making the promise, while the covenantee is the person to whom the promise is given.
These roles are established in the context of a covenant agreement.
How are covenants registered for unregistered land?
As a Class D(ii) Land Charge at the time the covenant was given.
Registration provides actual notice to subsequent buyers.
What must be established to ascertain the benefit of a restrictive covenant?
Whether the benefitting land is registered or unregistered.
This may require examination of title deeds or official copies of title registers.
What is the doctrine of privity of contract in relation to covenants?
Covenants are enforceable between the original covenantor and covenantee.
The original covenantee can sue the original covenantor for breach.
What is the general rule regarding the burden of a positive covenant?
It does not run with the land at common law or in equity.
Unlike restrictive covenants, which can remain enforceable against successors.
What are the conditions for the benefit of a covenant to pass at common law?
- The covenant ‘touches and concerns’ the benefited land
- The parties intended the benefit to pass to successors
- The covenantee holds the legal estate in the land
This means the benefit of the covenant can automatically pass with land ownership.
What is the Tulk v Moxhay rule?
A rule that allows the burden of a restrictive covenant to be enforced against successors in title under certain conditions.
It applies specifically to negative covenants.
What must a purchaser have to be bound by a restrictive covenant?
Notice of the restrictive covenant.
Without notice, a transferee for valuable consideration may take possession free of the burden.
What is the Halsall v Brizell rule?
An exception allowing the burden of positive covenants to run with the land if the successor derives a benefit associated with the burden.
This requires correlation between the burden and benefit.
What is required for the benefit of a covenant to pass in equity?
- Words of annexation
- Chain of equitable assignments
- Rules relating to building schemes
The benefit can pass even if it hasn’t been expressly annexed to land.
What is statutory annexation in relation to covenants?
The automatic passing of the benefit of a covenant to successors under s. 78(1) LPA 1925.
This occurs if the covenant ‘touches and concerns’ identifiable land.
What is the significance of a chain of equitable assignments in relation to covenants?
It allows the covenantee to expressly assign the benefit of a covenant in equity even if the requirements of s. 136 LPA 1925 are not met.
This is important for ensuring that covenants can still be enforced in specific situations.
What are the requirements for building schemes as established in Elliston v Reacher (1908)?
The requirements are:
* Purchasers must derive their titles from a common seller.
* Seller must have laid out land in separate plots before selling.
* Same restrictions must be imposed on all plots.
* Each purchaser must understand that covenants benefit all other plots.
These rules ensure that all buyers within a development can enforce the same covenants.
In the context of restrictive covenants, what happens when a landowner subdivides their land?
New owners of subdivided plots cannot enforce the covenants attached to the original retained land against the purchaser of the part of the land.
This was established in Russell v Archdale (1964).
What is a chain of indemnity covenants?
It is a mechanism where the original covenantor remains liable for breaches and obtains indemnity from subsequent purchasers.
This protects the original covenantor from claims arising from breaches by subsequent owners.
What is the purpose of compulsory renewed covenants supported with a restriction on title?
It requires subsequent buyers to enter a direct agreement with the covenantee, ensuring compliance with positive covenants.
This obligation is secured by a title restriction preventing registration until the new covenant is confirmed.
What is an estate rentcharge with a right of entry?
It allows the rentcharge owner to enter the land, perform necessary works, and recover costs from the defaulting landowner.
This method is rarely used in practice despite its provision for positive covenants.
