Freehold covenants Flashcards
(39 cards)
Who is the covenantee?
- The person who receives the benefit of the promise
- Can sue if the covenant is breached
Who is the covenantor?
- The person who makes the promise
- Can be sued if covenant is breached
What is a positive covenant?
- A promise to do something
- Usually involves expenditure of money
What is a negative/restrictive covenant?
- A promise not to do something
- Restricts use of the land and can be complied with by inaction
What are the sets of rules for passing the burden/benefit of covenants?
- Equitable rules
- Common law rules
What is the test for determining the nature of a covenant?
The hand in pocket test
What is a mixed covenant?
A promise which has positive and restrictive elements
In what ways can a mixed covenant interpreted?
- As separate covenants
- As one obligation with a condition attached
What is the general rule re passing the burden?
Burden of a covenant does not pass to a successor at common law
What are the equitable rules in Tulk v Moxhay?
1.) Covenant must be restrictive
2.) Covenant must accommodate the dominant tenement
3.) Must be intention for the burden of the covenant to run
4.) Must be notice for the covenant
What do the equitable rules developed in Tulk v Moxhay allow?
Allows the burden of certain covenants to pass to successors, allowing the covenant to be enforced direct against the person in breach
What are the three aspects linked to the rule ‘the covenant must accommodate the dominant tenement?
- The covenantee and successor covenantee must hold an interest in the land at the time of creation and enforcement
- The covenant must touch and concern the land
- There must be sufficient proximity between the dominant and servient land
What are the two things that must be shown if a successor covenantee wishes to enforce a breach against a successor covenantor?
- That the burden of the covenant has passed to the successor covenanter in equity
- The benefit has passed in equity
What two elements must be fulfilled to pass a benefit in equity?
- Covenant must touch and concern the dominant land
- Benefit must be passed by one of the recognised methods in Renals v Cowlishaw:
1. Annexation
2. Assignment
3. A building scheme
When does annexation occur?
When the benefit becomes a permanent part of the dominant land itself
In what ways can annexation occur?
- Express annexation
- Statutory annexation (LPA 1925 s78)
What is the effect of LPA 1925 s78 (statutory annexation)?
- It makes annexation automatic unless it is excluded
When does assignment occur?
Where the benefit of the covenant has been annexed at the outset - it is treated as a separate interest in the land and must be transferred every time the land is transferred
What are the formalities set out in LPA 1925 s53(1)(c) relating to the separate assignment of the benefit?
-Must be in writing and signed by the person transferring the benefit
What are the conditions of a building scheme set out in Ellison v Reacher?
A. All buyers buy from the same seller
B. The seller divides the estate into plots
C. The covenants were intended to benefit all of the plots
D. Each. buyer buys on the understanding that the covenants are intended to benefit all plots
What sort of remedies are available in a breach of covenant situation?
- When benefit and burden can be proven to have been passed to the successors. successor covenantee can directly enforce the covenant against the covenantor in breach
- Equitable remedies are available, but are discretional
- Injunctions
What type of injunction should be used if the breach is threatened or ongoing?
Prohibitory injunction
What type of injunction should be used if the breach has already occurred?
Mandatory injunction
When will equitable damages be awarded?
In lieu of an injunction where an injunction would be oppressive if granted
