Freehold Covenants Flashcards
(33 cards)
How may the benefit of a freehold covenant pass in common law to a new owner?
- Express assignment (s136 LPA 1925)
2. Implied passing (P&A Swift Investments v Combined English Stores Group plc)
What are the four steps to ascertaining whether the benefit of a freehold covenant has passed to a new owner impliedly in common law?
- The covenant touches and concerns the land;
- The original parties intended the benefit to run;
- The covenantee must have held a legal estate in the land at the time the covenant was made;
- Successors in title must hold a legal estate in the land.
According to Lord Oliver of Aylmerton what is meant by touching and concerning the land in P&A Swift Investments v Combined English Stores plc?
- The covenant only benefits the covenantee while in possession of the land;
- The covenant affects the nature, quality, mode of user or value of the land;
- The covenant is not expressed to be personal;
- The fact that the covenant is to pay a sum of money is not a bar against it touching and concerning the land.
In which case was it held that a covenant not to compete with the business of the convenantee does touch and concern the land?
Newton Abbot Co-operative Society Ltd v Williamson & Treadgold Ltd
How must a legal freehold covenant be created?
By deed
What is the effect if the covenant deed does not expressly state that the benefit should run with the land?
s78 LPA 1925 will imply that the current owners/occupiers are successors in title benefiting from the covenant.
Historically it was necessary for a successor in title to have the same type of legal estate ie f/h or l/h as the original covenantee in order to enforce the covenant. Which case overruled and instated s78 LPA 1925 as allowing successors of title of any estate the ability to sue?
Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board
Who is able to sue for a breach of covenant according to s56 LPA 1925?
A person who was not party to the covenant
Which case limited the effect of s56 LPA 1925 to mean only parties who were identifiable from the wording of the covenant could sue?
Beswick v Beswick
Which statutory provision may have usurped s56 LPA 1925 in allowing third parties to sue for breach of covenant?
s1 Contracts (Rights of Third Parties) Act 1999
In the odd situation where the original covenantee has parted with the land and wants to sue for breach of covenant is it possible for them to do so?
Yes, but only if they have not expressly assigned the covenant under s136 LPA 1925 and the covenant was drafted in a way so as to benefit the covenantee beyond their ownership of the land ie it was a personal covenant.
Under the common law can the burden of a covenant pass to a successor in title?
No (Austerberry v Oldham Corpn)
What theoretical ways around are there to the limitation on passing of burdens of covenant?
- Pursue the original covenantor and indemnities
- The exception in Halsall v Brizell
- Covenantee grants a long lease rather than selling off part of their land as f/h
- Create a commonhold
- Place a s40 restriction so as to force every new purchaser to create a covenant.
Which statutory provision implies, where it is not expressed, that the burden in common law will remain with the original covenantor even when land has been passed on to successors in title? Which case confirms this?
s79 LPA 1925 is confirmed by Tophams Ltd v Earl of Sefton
What is the problem with pursuing the original covenantor and not being able to pursue the successor in title?
Pursuing the original covenantor does not remove the possibility of the current owner/occupier continuing to breach the covenant. It does not allow the claimant to obtain specific performance or an injunction against the person in breach, only damages against the covenantor.
If the original covenantor is sued for the successor in title’s breach of a covenant how may they recoup their losses and how might this dissuade breaches of covenant?
If the original covenantor took out an indemnity when passing the land to their successor they could recoup from them and dissuade them from committing a breach of covenant.
When does the exception in Halsall v Brizell operate?
Where the covenantee grants a benefit to the covenantor which is necessarily accompanied by a burden eg the right to use a driveway or drain comes with the burden of having to maintain it.
Which case confirmed that the exception in Halsall v Brizell is only available where the burden and benefit are mutual and there is no general principle to take any burden that arises out of a benefit?
Rhone v Stevens
According to the case of Thamesmead Town Ltd v Allotey what two requirements have to be satisfied in order to use the exception in Halsall v Brizell?
- The discharge of the burden should be related to the benefit;
- The successor should have the option to deny the benefit and the burden
What four requirements are there for the burden to have passed at equity? What case is this said to have come from?
- The covenant must be negative
- The covenant must accommodate the dominant tenement, meaning
a) the covenantee and successors in title must have had interest in the dominant tenement at the time of creation and enforcement respectively
b) the covenant must touch and concern the land
c) there must be sufficient proximity between the dominant and servient tenements - The original parties must have intended the burden to run
- A purchaser of the servient land must have had notice
How do we tell whether a covenant is positive or negative?
By looking at its substance/effect not its form/expression. According to the case of Haywood v Brunswick Permanent Benefit Building Society if the covenant requires a person to spend money in order to see that the covenant is upheld then it is positive.
Some covenants may be both positive and negative. How are these treated?
- Either the positive and negative parts are split (Shepherd Homes Ltd v Sandham (No 2))
- Or the covenant is taken as a whole to be positive or negative (Powell v Hemsley)
In which case did Lord Templeman confirm that the burden of positive covenants will not pass in equity? What two ways then are left for a covenantee to enforce a positive covenant?
Rhone v Stevens
The covenantee will either have to pursue the original covenantor or argue for the exception in Halsall v Brizell.
Which case may we use as an authority for the rule that there must be sufficient proximity between the dominant and servient tenements for the burden of a covenant to run in equity?
Bailey v Stephens
